United States Court of Appeals For the First Circuit
Nos. 21-1892 21-1893
UNITED STATES OF AMERICA,
Appellee,
v.
ÁNGEL LUIS CRUZ-AGOSTO, a/k/a Bebo Sambo, t/n Angel Luis Cruz-Agosto,
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, Montecalvo and Rikelman, Circuit Judges.
Leticia Casalduc-Rabell for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
May 14, 2024 MONTECALVO, Circuit Judge. Ángel Cruz-Agosto was
convicted as a felon in possession of a firearm in violation of 18
U.S.C. §§ 2, 922(g)(1), and 924(a)(2) following the entry of a
guilty plea pursuant to a plea agreement. Cruz-Agosto now appeals
his sentences in relation to this conviction and the revocation
sentence he received for committing these crimes while serving a
term of federal supervised release. Cruz-Agosto focuses his appeal
on an alleged breach of the plea agreement by the prosecutor at
sentencing. For the reasons that follow, we affirm the sentences
given by the district court.
I. Background1
On January 8, 2020, Puerto Rico Police Department agents
in an unmarked vehicle pulled up to a stopped SUV to check on the
occupants. Cruz-Agosto was seated in the driver's seat when the
agents approached; a woman, the passenger in the car, was also
standing by the open passenger door. While talking to the
passengers, one of the agents observed Cruz-Agosto pull a
tan-colored pistol from his waistband area and drop it on the floor
behind the front-passenger seat. The agents then ordered both
individuals away from the vehicle; the agents searched the car and
1 Because this appeal follows a guilty plea, "we glean the following relevant facts from the plea agreement, the undisputed sections of the presentence investigation report, and the transcripts of the change-of-plea and sentencing hearings." United States v. Spinks, 63 F.4th 95, 97 (1st Cir. 2023) (cleaned up).
- 2 - seized a 9mm Glock pistol and a silver Raven Arms pistol, as well
as forty rounds of 9mm caliber ammunition. The Glock pistol had
been modified to shoot more than one round of ammunition from a
single pull of the trigger. Neither occupant had a firearms
license. The agents arrested Cruz-Agosto, and a grand jury charged
him with a one-count indictment. He was on federal supervised
release at the time of the arrest.2
In May 2021, Cruz-Agosto entered into a plea agreement
with the government. The plea agreement calculated a Total Offense
Level ("TOL") of nineteen. Although the plea agreement did not
calculate Cruz-Agosto's Criminal History Category ("CHC"), the
parties agreed to jointly recommend a sentence of thirty-seven
months' imprisonment irrespective of the CHC. The parties
anticipated that Cruz-Agosto may have a higher CHC than I. The
parties also agreed that Cruz-Agosto "may argue for a concurrent
sentence in the revocation of supervised release . . . while the
[g]overnment reserve[d] the right to argue for a consecutive
sentence of [four] months of imprisonment."
On June 4, 2021, at a change-of-plea hearing,
Cruz-Agosto, pursuant to the plea agreement, pled guilty to the
2 Cruz-Agosto had previously pled guilty to one count of conspiracy to possess with intent to distribute controlled substances within a protected location and had been sentenced to eighty-seven months' imprisonment followed by six years of supervised release, which he had been serving at the time of arrest.
- 3 - one-count indictment as a felon who knowingly and unlawfully
possessed two firearms in violation of 18 U.S.C. §§ 2, 922(g)(1),
and 924(a)(2). A Presentence Investigation Report ("PSR") was
subsequently prepared by the probation office. Like the parties,
the PSR calculated the TOL as nineteen. However, the PSR
calculated a CHC of V, due to the applicable criminal history score
of eleven. Accordingly, the guidelines sentencing range ("GSR")
under the United States Sentencing Guidelines was fifty-seven to
seventy-one months' imprisonment.
The district court subsequently held sentencing hearings
both on Cruz-Agosto's new conviction and on the revocation of his
supervised release. At sentencing on the new conviction,
Cruz-Agosto's counsel reiterated that the parties were jointly
recommending thirty-seven months' imprisonment. In support of the
parties' request for a below-guidelines sentence, Cruz-Agosto's
counsel urged the court to consider his strong familial
relationships and "the overrepresentation" of Cruz-Agosto's
criminal history. The district court asked the government if it
had anything to add, and the government responded, "just that we
are standing by the plea agreement and recommendation of
[thirty-seven] months."
The district court agreed with the calculations in the
PSR as to the TOL and CHC. Like the PSR, based on the TOL and
CHC, the district court calculated the GSR as fifty-seven to
- 4 - seventy-one months' imprisonment. The district court found,
however, that "the sentence recommended by the parties does not
reflect the seriousness of the offense, does not promote respect
for the law, does not protect the public from further crimes by
Mr. Cruz[,] and does not address the issues of deterrence and
punishment." Accordingly, the district court sentenced
Cruz-Agosto to a within-guidelines sentence of seventy-one months'
imprisonment, followed by a three-year term of supervised release.3
Immediately following that hearing, the district court
held a sentencing hearing for the revocation of Cruz-Agosto's
supervised release. Cruz-Agosto requested a revocation sentence
of twelve months' imprisonment to run concurrently with his other
sentence. When it came time for the government to make its
recommendation, it stated in full:
Your Honor, when [the government] and [Cruz-Agosto] negotiated this agreement, it contemplated that the government would ask for a consecutive four months on top of the sentence rendered by the [c]ourt on the new case. Now that the [c]ourt has sentenced above that recommendation, I don't necessarily feel comfortable, given the agreement, asking that the revocation be consecutive.
So I will simply leave this in the [c]ourt's discretion, unless the [c]ourt wants a more specific position from the government. I don't want to run afoul of the intent of the
3 Cruz-Agosto objected to the new sentence "based on procedural and substantive unreasonableness." However, he does not pursue these objections on appeal.
- 5 - agreement, which I see as binding on the government, Your Honor.
The district court responded that it "[did]n't think [Cruz-Agosto]
w[ould] complain about [the government] requesting a concurrent
sentence." The government did not reply to the court's remark nor
make any further recommendation as to the revocation sentence.
The district court revoked Cruz-Agosto's supervised
release after finding that Cruz-Agosto had violated the conditions
of his supervised release by committing new crimes. The district
court calculated the applicable guidelines range for the
revocation sentence to be twelve to eighteen months' imprisonment.
Accordingly, the district court sentenced Cruz-Agosto to a
within-guidelines sentence of eighteen months' imprisonment to be
served consecutively to the other sentence imposed.4
Cruz-Agosto filed timely notices of appeal as to both
sentences.
II. Discussion
On appeal, Cruz-Agosto argues that the government
breached its obligation under the plea agreement by not making
further statements in support of the recommended sentence, by not
arguing for a concurrent sentence or a maximum of a four-month
consecutive sentence on the revocation, and by failing to correct
4 At the sentencing hearing, Cruz-Agosto objected to the length of the revocation sentence. However, he does not pursue this objection on appeal.
- 6 - a perceived error made by the district court. For the reasons
that follow, we reject each of these arguments.
A. Standard of Review
Because Cruz-Agosto did not object below to the
purported breaches of the plea agreement, the parties agree that
our review on appeal is for plain error. See United States v.
Lessard, 35 F.4th 37, 42 (1st Cir. 2022); United States v. Saxena,
229 F.3d 1, 5 (1st Cir. 2000). Plain error requires a defendant
to 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." Lessard, 35 F.4th at 42
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
"[A]n error is deemed to affect substantial rights when it likely
affected the outcome of the proceedings." United States v.
Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014).
B. Breach of Plea Agreement
"When a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be
fulfilled." Lessard, 35 F.4th at 42 (cleaned up) (quoting
Santobello v. New York, 404 U.S. 257, 262 (1971)). "Because plea
bargaining requires defendants to waive fundamental constitutional
rights, we hold prosecutors engaging in plea bargaining to the
- 7 - most meticulous standards of both promise and performance." Id.
(quoting United States v. Clark, 55 F.3d 9, 12 (1st Cir. 1995)).
Thus, "[a] defendant is entitled to the benefit of the bargain
struck in the plea deal and to the good faith of the prosecutor."
Id. (cleaned up) (quoting United States v. Matos-Quiñones, 456
F.3d 14, 24 (1st Cir. 2006)).
In our review, we consider the totality of the
circumstances. Id. "The critical question is whether the
prosecutor's 'overall conduct is reasonably consistent with making
the promised recommendation, rather than the reverse.'" Id.
(cleaned up) (quoting United States v. Canada, 960 F.2d 263, 269
(1st Cir. 1992)). We address each of Cruz-Agosto's arguments
alleging breach in turn.
1. "Lip Service" as to the Recommended Sentence on the New Offense
Cruz-Agosto first alleges that the government breached
the plea agreement by merely making a "scant, neutral statement"
at the sentencing for Cruz-Agosto's new offense, "rather than
affirmatively recommending," the agreed-upon downwardly variant
sentence. In particular, Cruz-Agosto argues that the government
-- to satisfy its obligations under the plea agreement -- is
required to justify its recommendation for a significant downward
variance from the GSR. In doing so, Cruz-Agosto relies heavily on
- 8 - our decision in United States v. Rivera-Ruiz, 43 F.4th 172 (1st
Cir. 2022).
We require prosecutors to pay "more than lip service to,
or technical compliance with, the terms of a plea agreement."
Lessard, 35 F.4th at 42 (quoting Almonte-Nuñez, 771 F.3d at 89).
However, "prosecutors need [not] adhere to any particular form of
words in 'recommending' an agreed sentence, but their overall
conduct must be reasonably consistent with making such a
recommendation." Canada, 960 F.2d at 269. Further, "a prosecutor
normally need not present promised recommendations to the court
with any particular degree of enthusiasm." Id. at 270.
Here, the government affirmatively stated at sentencing,
"we are standing by the plea agreement and recommendation of
[thirty-seven] months." This was clearly an affirmative
recommendation to the sentencing court, even if it was "simple and
straightforward." United States v. Montañez-Quiñones, 911 F.3d
59, 65 (1st Cir. 2018). Cruz-Agosto does not argue that the
government had an affirmative duty to present any other information
under the plea agreement, and he does not suggest that the
government "conspicuously undermin[ed] its agreed position."
Canada, 960 F.2d at 270. Indeed, "the government at no point
suggested -- or even insinuated -- that the circumstances called
for a different sentence than the one it had agreed to recommend."
Saxena, 229 F.3d at 8. Put another way, "the government did not
- 9 - fail to argue something that it explicitly promised to, nor did
the government explicitly argue anything prohibited by the plea
agreement." United States v. Frazier, 340 F.3d 5, 12 (1st Cir.
2003).
Further, Cruz-Agosto's comparison of this case to
Rivera-Ruiz is unavailing. 43 F.4th 172. In Rivera-Ruiz, we held
that the government did not breach the plea agreement when it
proffered "additional facts outside the plea agreement" in arguing
for a sentence at the high end of the GSR. Id. at 178, 180. In
comparing Rivera-Ruiz to the case at hand, Cruz-Agosto argues that
where the government agrees to jointly recommend a downwardly
variant sentence, the government must explicitly describe the
facts that support that downward variance. This argument fails on
several points, and we cannot discern any error here.
First, we note that we have never imposed an obligation
on the government to further explain its recommendation for a
downwardly variant sentence when such an obligation is not explicit
in the plea agreement. See United States v. Gall, 829 F.3d 64, 73
(1st Cir. 2016) (finding no plain error where government
recommended the sentence outlined in the plea agreement but did
not offer additional facts to support that downwardly variant
sentence and instead stated that the PSR's guidelines calculation
was "correct," even where the PSR calculations were higher than
those in the plea agreement). Generally, there is "no affirmative
- 10 - obligation of either advocacy or explication on the prosecutor"
when the plea agreement itself does not impose such a duty.
Lessard, 35 F.4th at 44. The plea agreement here did not require
the government to do more than "jointly recommend a sentence of
[thirty-seven] months of imprisonment," which the government
expressly did.
Second, Cruz-Agosto fails to distinguish between what
the government is obliged to do under the plea agreement and what
the government is permitted to do under the agreement. For
example, in Rivera-Ruiz, we noted that "[t]he plea agreement did
not expressly or implicitly preclude the government from
proffering additional relevant information to support its
recommendation." 43 F.4th at 180. Ultimately, when the
government's introduction of additional relevant information does
not "violate the spirit of the plea agreement through an 'end-run
around' its assurances," we have consistently found such a proffer
to be permissible, even where not obligatory. Id.; see, e.g.,
United States v. Rivera-Rodríguez, 489 F.3d 48, 58 (1st Cir. 2007)
(holding that "the government was free to offer reasons in support
of [its] recommendation" under the plea agreement). But here,
while the government generally was permitted to reiterate some of
the relevant facts at sentencing, it was not obligated to do so.
The government's only obligation at sentencing, under the plea
- 11 - agreement, was "to jointly recommend a sentence of [thirty-seven]
months of imprisonment."
Lastly, Cruz-Agosto argues that the government breached
its duty to provide the sentencing court with relevant information.
See United States v. Reyes-Santiago, 804 F.3d 453, 474 (1st Cir.
2015) (discussing the government's "obligation to furnish relevant
information" (quoting Saxena, 229 F.3d at 6)). At the sentencing
hearing and in his sentencing memorandum, Cruz-Agosto extensively
discussed the factors he believed justified a downward variance,
such as his relationship with his family, his prior work
experience, and the potential overrepresentation of his criminal
history in his CHC calculation. He now suggests on appeal that
the government was required to present this same information to
the sentencing court. Given the terms of the plea agreement, we
are not persuaded that the government had an obligation to repeat
these mitigating factors when Cruz-Agosto himself had already
provided the sentencing court with this relevant sentencing
information. Further, Cruz-Agosto does not suggest that the
government undermined these mitigating facts in any way.
For these reasons, we discern no error -- plain or
otherwise -- in the prosecutor's actions at the sentencing hearing
as to the new offense. The prosecutor's overall conduct was
consistent with making the promised recommendation of thirty-seven
months' imprisonment.
- 12 - 2. Failure to Recommend a Concurrent or a Maximum of a Four-Month Consecutive Sentence on Revocation
Next, Cruz-Agosto argues that the prosecutor was
required to argue for a revocation sentence of no more than a
consecutive four-months' imprisonment. In the same vein,
Cruz-Agosto argues that he had "bargained with the [g]overnment in
order to obtain a total incarceration period no longer tha[n]
[forty-one] months," and, thus, "in th[e] spirit" of the agreement,
the government was required to "request any length of revocation
sentence to run concurrently with the [seventy-one] months." We
find that this argument fails on the third prong of plain error:
prejudice.
To reiterate the relevant facts, as part of the plea
agreement, the parties agreed that the government could "argue for
a consecutive sentence of [four] months of imprisonment" at the
revocation sentencing. At the revocation sentencing hearing, the
prosecutor referenced that the government had reserved the right
to argue for a consecutive four-month revocation sentence but
stated that, in light of the court's seventy-one-month sentence
for the new offense, the prosecutor did not "feel comfortable . . .
asking that the revocation be consecutive" based on the
government's plea obligations. Cruz-Agosto now contends that the
government breached the plea agreement by not explicitly making a
- 13 - concurrent sentencing recommendation and, instead, leaving the
revocation sentence to the court's discretion.
We have reiterated that, under our plain error standard,
"an appellant's substantial rights are deemed to be affected only
when an error 'likely affected the outcome of the proceedings.'"
Montañez-Quiñones, 911 F.3d at 64 (quoting Almonte-Nuñez, 771 F.3d
at 89). Here, "[t]here is nothing in the record to suggest that
the district court would in fact have imposed the recommended
sentence had the government affirmatively made the recommendation"
requested by Cruz-Agosto. United States v. Sierra-Jiménez, 93
F.4th 565, 570 (1st Cir. 2024). The record makes clear that the
district court considered the government to be recommending a
concurrent sentence, to the benefit of Cruz-Agosto. Specifically,
the court stated that it did not "think [Cruz-Agosto] w[ould]
complain about [the government] requesting a concurrent sentence."
The district court then simply rejected a concurrent sentence.
Cruz-Agosto has not offered any basis for his argument
that, had the government expressly asked for a concurrent sentence,
the district court would have sentenced him differently. We are
further unpersuaded that the district court would have imposed a
lesser consecutive sentence if the government made an explicit
request for the same. For this reason, Cruz-Agosto has not met
his burden of establishing that any claimed error "affected [his]
- 14 - substantial rights," and Cruz-Agosto has not met the plain error
standard. Sierra-Jiménez, 93 F.4th at 570-71.
3. Failure to Bring Error to Court's Attention
Lastly, Cruz-Agosto insists that the court erred in its
understanding of the PSR's recommendation on the revocation
sentence, and the government subsequently breached the plea
agreement by failing to "bring[] that error to the court's
attention."5 This argument fails on the second prong of plain
error: that any alleged error was clear or obvious.
In particular, Cruz-Agosto points to the sentencing
court's statement that "the [c]ourt agrees with the probation
officer and concludes that a sentence at the high end of the
guideline range is a sentence sufficient, but not greater than
necessary, to comply with . . . Title 18, United States Code,
Section 3553(a)." Cruz-Agosto understands this statement to mean
that the sentencing court mistakenly believed that the probation
officer had recommended a sentence at the higher end of the GSR.
Thus, Cruz-Agosto argues that the government had to correct this
misunderstanding "to meticulously adhere to the spirit of the plea
agreement."
5 Notably, Cruz-Agosto does not base this appeal on any alleged mistake by the district court, but instead focuses on the government's breach of its duties.
- 15 - However, the sentencing court's statement is open to
another interpretation: that the court was agreeing with the
representations and guidelines stated in the PSR, which allowed
the court to independently conclude that a sentence at the high
end of the GSR was appropriate. Given this equally plausible
reading of the record, we cannot find that any error (if one
exists) was clear or obvious such that the government was required
to affirmatively correct the district court. This is particularly
true where Cruz-Agosto also did not object to the court's supposed
misunderstanding. For this reason, Cruz-Agosto's final argument
also fails.
III. Conclusion
For the foregoing reasons, we affirm the sentences
imposed by the district court.
- 16 -