United States v. Cruz-Vázquez

841 F.3d 546, 2016 WL 6648672
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 10, 2016
DocketNo. 15-1289
StatusPublished
Cited by12 cases

This text of 841 F.3d 546 (United States v. Cruz-Vázquez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cruz-Vázquez, 841 F.3d 546, 2016 WL 6648672 (5th Cir. 2016).

Opinion

HOWARD; Chief Judge.

This case concerns a challenge to' the sentence imposed on Angel Rudiel Cruz-Vázquez (“Cruz”) for unlawful possession of a fully-automatic firearm. Cruz challenges the reasonableness of his 36-month prison sentence. After careful consideration, we affirm.

I. Background

Cruz pleaded guilty to possession'of a machine gun in violation of 18 U.S.C. § 922(o) after law enforcement agents, conducting a traffic stop, recovered from his car a dock pistol modified to shoot automatically.1 Although agents also found a bag containing drug paraphernalia and marijuana residue in the trunk of Cruz’s vehicle, this detail was omitted from the plea agreement’s stipulated version of the facts, and the drug evidence also went unmentioned in the PSR.

Under the terms of the plea agreement, the parties stipulated that Cruz’s Base Offense Level-under U.S.S.G. § 2K2.1 was 18 and that, after applying a three-level reduction for acceptance of responsibility, his Total Offense Level was 15. The parties estimated that this Total Offense Level, coupled with a Criminal History Category of I, would provide for a sentencing range of 18 to 24 months. The parties agreed not to seek any further guideline adjustments, departures, enhancements, reductions, or variances. Finally, the parties stipulated that while Cruz could request a sentence at the lower end of the applicable guideline range, the government reserved the right to argue for a sentence at the higher end.

Prior :to the sentencing hearing, the government submitted a sentencing memorandum to the district court that, among other [548]*548things, discussed the drug paraphernalia retrieved from Cruz’s car and noted that “[t]he items recovered are consistent with what drug traffickers usually keep and use.” When the judge mentioned the bag of drug paraphernalia at the sentencing hearing, Cruz objected, as he had not admitted to owning, possessing, or previously seeing the bag. Ultimately, the district court stated that it would not consider the bag of drug paraphernalia when determining Cruz’s sentence.

The sentencing court went on to make detailed and specific findings as to each of the relevant 18 U.S.C. § 3553(a) sentencing factors. While acknowledging potentially mitigating factors emphasized by Cruz, the district court also raised concerns about Cruz’s offense, saying:

[I]n Puerto Rico ... [w]e have a record of shootings that is greater th[a]n the ones in the City of New York and Chicago.... [I]t is very clear why these types of guns ... have been prohibited and it is because of the potential to cause real and huge damages to innocent bystanders. I think this type of offense is having a dramatic effect on the community. You cannot argue that this [gun] can be used for personal defense ... it is not a regular weapon, it is a machine gun.

The judge concluded, “I think that because of this, these factors per se will allow for a variance.” The district court subsequently imposed a 36-month incarcerative sentence.

' This appeal timely followed.

II. Analysis

On appeal, Cruz alleges both that the government violated the spirit of the plea agreement by bringing the bag of drug paraphernalia to the district court’s attention and that the district court abused its discretion in deviating from the guideline range and imposing a 36-month incarcera-tive sentence. We take these claims in turn.

A. Breach of the Plea Agreement

Cruz argues, in effect, that the government violated the plea agreement by seeking an upward variance from the jointly-stipulated Base Offense Level. Specifically, he accuses the government of implicitly “arguing for a four level increase as prescribed in [U.S.S.G. § ] 2K2.1(b)(6)(B),” which applies if a defendant used or possessed a firearm in connection with another felony offense, by. including the information about drug paraphernalia in its sentencing memorandum.

Whether the government has breached its plea agreement with Cruz presents a question of law, and our review is de novo. See United States v. Rivera-Rodriguez, 489 F.3d 48, 57 (1st Cir. 2007). “[W]hen 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.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Prosecutors engaging in plea bargaining are held to “meticulous standards of both promise and performance” because such bargaining requires defendants to waive fundamental constitutional rights. United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002). We prohibit not only explicit repudiation of the government’s assurances but also end-runs around those assurances. Rivera-Rodriguez, 489 F.3d at 57; United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992).

Other cases may raise difficult questions about how to reconcile the prosecution’s obligation to uphold any bargain made in a plea agreement with its duty to disclose information material to the district [549]*549court’s sentencing determinations. See United States v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000). Admittedly, these responsibilities can pull in different directions. Id. This case, however, does not implicate that tension. The district court expressly stated that it would disregard the drug paraphernalia in calculating Cruz’s sentence. In other words, any potential tension that the prosecution may have experienced in choosing to disclose the drug-paraphernalia information to the district court had no bearing on the sentence that Cruz received.

The plea agreement expressly provided that the government could recommend a sentence at the high end of the guideline range. And this the government did. In both its sentencing memorandum and at the sentencing hearing, the government specifically asked the district court to impose “[a] sentence of twenty-four (24) months imprisonment,” one at “the upper end of the applicable guideline in this case.” The record makes plain that the prosecution never explicitly or implicitly sought a sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B).

Having unequivocally stated that it was recommending a sentence at the higher end of the guideline range, the government was free to offer reasons supporting its recommendation. See Rivera-Rodriguez, 489 F.3d at 58 (finding no error where the government told the court that there were quantities of cocaine beyond the -stipulated-to amount in the plea agreement). By statute, “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C.

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Bluebook (online)
841 F.3d 546, 2016 WL 6648672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cruz-vazquez-ca5-2016.