United States v. Laquer Avellanet

Opinion

USCA1 Opinion

July 12, 1996         [Not for Publication]
                                [Not for Publication]

                            United States Court of Appeals

                                For the First Circuit

                                 ____________________


No. 95-1654



                                    UNITED STATES,



                                      Appellee,



                                          v.



                               VICTOR LAGUER-AVELLANET,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Stahl, Circuit Judge,
                                       _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                              and Lynch, Circuit Judge.
                                         _____________



                                 ____________________



            Benito I. Rodriguez Masso for appellant.
            _________________________

            Jeanette Mercado-Rios, Assistant United States Attorney, with
            _____________________

        whom Guillermo Gil, United States Attorney, and Jose A. Quiles-
             _____________                              _______________

        Espinosa, Senior Litigation Counsel, were on brief for appellee.
        ________


____________________


____________________



Stahl, J.  Defendant-appellant Victor Laguer-
                      Stahl, J
                      ________



            Avellanet pleaded guilty, pursuant to a plea agreement, to a



            drug trafficking conspiracy.  Despite the government's



            recommendation, made in accordance with that agreement, for a



            twelve-month imprisonment term, the district court imposed a



            fifteen-month term.  In this appeal, Laguer-Avellanet seeks



            to be resentenced to the recommended term but not to withdraw



            his plea.



                                          I.
                                          I.
                                          __



                        Pertinent Facts and Prior Proceedings
                        Pertinent Facts and Prior Proceedings
                        _____________________________________



                      In December 1994, a grand jury returned an



            indictment charging in count one that Laguer-Avellanet1 and



            ten codefendants conspired to distribute and to possess with



            intent to distribute cocaine.  In February 1995, Laguer-



            Avellanet entered into a plea agreement with the government



            whereby he agreed to plead guilty to that count.



                      The plea agreement set forth the parties'



            stipulations as to several sentencing guideline matters.2 



            It provided that the conduct relevant to the offense yielded



            an offense level of eighteen, pursuant to U.S.S.G.



              2D1.1(a)(3).  The parties also agreed to downward



                                
            ____________________



            1.  Laguer-Avellanet is also known as Ruben Sanchez-Irizarry.



            2.  The plea  agreement originally provided only  that it was

            entered into "pursuant to Rule 11(e)(3)" of the Federal Rules

            of Criminal Procedure.   The  parties agreed to  add to  that

            provision, "11(e)(1)(C)," which the court acknowledged at the

            change of plea hearing.



                                         -2-
                                          2



adjustments for acceptance of responsibility, U.S.S.G.



              3E1.1(b), and for being a minor participant, U.S.S.G.



              3B1.2(b), for a total reduction of five levels, yielding a



            total offense level of thirteen.  The plea agreement also



            stated that "[t]he guideline sentencing range, then, is



            twelve (12) to eighteen (18) months," and thus, it reflected



            a presumed criminal history category of one.  See U.S.S.G.
                                                          ___



            Ch.5, Pt.A, Sentencing Table.



                      Further, the agreement provided:



                      The United States recommends a twelve

                      (12) month term of imprisonment.  No

                      agreement concerning the application of

                      any other sentencing guideline has been

                      entered into by the parties.  There is no

                      agreement between the parties concerning

                      the Defendant's criminal history

                      category.  All other aspects of the

                      sentence are left to the sound discretion

                      of the Court.



            The agreement did not explicitly state whether or not the



            court was bound by the sentence recommendation, or whether



            Laguer-Avellanet would have the right to withdraw his plea if



            the court imposed a higher-than-recommended sentence.



                      On February 14, 1995, the district court conducted



            a change of plea hearing, during which Laguer-Avellanet



            pleaded guilty with several of his codefendants who had



            signed identical plea agreements.  At that hearing, the court



            reiterated the plea agreement's provisions regarding



            sentencing.  The court elicited Laguer-Avellanet's



            acknowledgment (along with the other defendants') that the


-3-
                                          3



agreed sentencing range was twelve to eighteen months, and



            that the government was recommending a twelve-month term of



            imprisonment.3  The court ensured Laguer-Avellanet's



            understanding that there was no agreement concerning the



            criminal history category and that "all other aspects of the



            sentence are left to the sound discretion of the Court." 



            Finally, the court informed him that the sentence would be



            imposed "in accordance with the sentencing guidelines and



            policy statements."



                      At the end of the change of plea hearing, the court



            accepted Laguer-Avellanet's guilty plea and ordered a



            presentence report ("PSR").4  At no time did the court



            explicitly state that it was accepting, rejecting, or



            deferring decision on the plea agreement.  Further, at no



            time did the court expressly warn Laguer-Avellanet that it



            was not bound by the twelve-month recommendation and that it



            could and might impose a higher sentence.  Further, nothing


____________________



            3.  The government confirmed its  twelve-month recommendation

            at  the  change  of   plea  hearing,  although  it   did  not

            affirmatively recommend it again  at the sentencing  hearing,

            stating only, "in keeping with the plea agreement, the United

            States  has  nothing  to  add."   Laguer-Avellanet  does  not

            suggest that the government breached the plea agreement.



            4.  Laguer-Avellanet  requested  to  "waive  the  presentence

            report"  so  that  he   could  begin  his  imprisonment  term

            immediately.   The court stated  that it would  "not accept a

            waiver  of  the  presentence  report,"  see U.S.S.G.    6A1.1
                                                    ___

            (prohibiting  such  waiver),  but allowed  Laguer-Avellanet's

            request to  begin his imprisonment term  before completion of

            the report and actual sentencing.



                                         -4-
                                          4



whatsoever was stated as to whether or not Laguer-Avellanet



            could withdraw his guilty plea upon learning of the court's



            ultimate sentencing determination.



                      On May 25, 1995, the district court, after



            reviewing an amended PSR, conducted a sentencing hearing. 



            The PSR concluded that, due to two prior convictions, Laguer-



            Avellanet had a criminal history category of two instead of



            the previously presumed one, which increased the applicable



            guideline sentencing range from that indicated in the plea



            agreement (twelve to eighteen months) to fifteen to twenty-



            one months: a range in excess of the recommended twelve-month



            term.



                      Objecting to the PSR's criminal history



            calculation, Laguer-Avellanet's counsel asserted, "we entered



            into a plea agreement in this case for a 12-month sentence,



            and that's what we have been all the time -- let's call it



            offering [Laguer-Avellanet]."  He also argued that the prior



            convictions were not properly countable in the criminal



            history category and that, even if they were, they were



            minimal in nature and the court should depart downward to



            effect the recommended twelve-month sentence.  After



            repeating his request that "the 12-month sentence be



            recognized as the applicable sentence and the proper sentence



            for our client in his case," counsel entreated upon the court



            that Laguer-Avellanet was truly remorseful for his crime,


-5-
                                          5



that there would be no recidivism on his part, and concluded



            that "it would be only fair for us and for him to receive a



            twelve-month sentence if that's into [sic] the discretion of



            the Court."



                      The court rejected these arguments, stating that



            Laguer-Avellanet had "struck a very good deal" and that he



            would have probably been sentenced to "fifteen years at



            least" had he gone to trial and been found guilty.  The court



            acknowledged that the specific sentencing-guideline



            stipulations had been formed pursuant to Fed. R. Crim. P.



            11(e)(1)(C), but, after reminding Laguer-Avellanet that he



            expressly had not stipulated to the criminal history



            category, it sentenced him to the lower end of the higher



            guideline range: fifteen months.  The court did not



            explicitly state whether or not it had accepted or rejected



            the plea agreement, nor did it offer Laguer-Avellanet an



            opportunity to withdraw his guilty plea.  At the conclusion



            of the hearing, Laguer-Avellanet did not object further,



            offer anything else to inform the proceedings, or request to



            withdraw his plea.5



                                
            ____________________



            5.  At oral argument before this  court, we asked counsel for

            Laguer-Avellanet whether or not, at that time, his client had

            completed  the fifteen-month  incarcerative  portion  of  his

            sentence.   We indicated that  if he had  been released, this

            case might be moot.  Neither counsel for Laguer-Avellanet nor

            the government's attorney  knew if he  was still in  custody.

            This court  has now  been informed that  Laguer-Avellanet was

            released from  custody into  a supervised release  program on

            March  29, 1996 (well before the date of oral argument before



                                         -6-
                                          6



II.
                                         II.
                                         ___



                                      Discussion
                                      Discussion
                                      __________



                      Laguer-Avellanet now claims that the parties did



            not agree merely to a twelve-month recommendation, but
                                               ______________



            rather, that they firmly agreed that twelve months was the



            appropriate sentence for his crime.  He contends that because



            the district court effectively accepted the plea agreement,



            it was bound to impose the twelve-month term and was



            obligated to "enter whatever [sentencing] findings were



            necessary to reach the same."  We disagree.



                      The plain language of the plea agreement provided



            that, although the government would recommend a twelve month



            imprisonment term, other aspects of the sentence were



            entirely open to the district court's resolution, to wit: the



            application of sentencing guidelines to which the parties did



            not otherwise stipulate, calculation of the criminal history



            category, and "[a]ll other aspects of the sentence."  During


____________________



            this court), having served the fifteen-month term.

                      Although Laguer-Avellanet challenges the  length of

            the  incarcerative  portion  of  his  sentence  and  not  his

            conviction, we find that  his appeal is not moot  despite his

            release from  prison because  the imposition of  the fifteen-

            month term instead  of a  twelve-month term could  lead to  a

            future "collateral consequence."   See U.S.S.G.   4A1.1 (a) &
                                               ___

            (b)  (mandating  three  criminal  history  points  for  prior

            sentences exceeding one year  and one month imprisonment, but

            only  two if  for a  lesser term  (of a  least sixty  days));

            United  States v.  Kassar, 47  F.3d 562,  565 (2d  Cir. 1995)
            ______________     ______

            (finding not moot a  sentence challenge despite completion of

            sentence because of possible future criminal history category

            calculation).



                                         -7-
                                          7



the plea colloquy, the court reiterated these provisions



            individually and elicited the Laguer-Avellanet's



            acknowledgment of them.  Laguer-Avellanet's statements and



            arguments to the court at sentencing, while urging a twelve-



            month sentence, reveal his understanding that the imposition



            of that term was within the discretion of the court.



                      On appeal, Laguer-Avellanet emphasizes, in a



            talismanic fashion, the language of Fed. R. Crim. P.



            11(e)(1)(C) and (e)(3), the provisions under which the



            parties purported to enter into the plea agreement.  On its



            face, Rule 11(e)(1)(C) applies when the parties have agreed



            to a "specific sentence," which must then be embodied in the



            final judgment and sentence, per Rule 11(e)(3), if the court



            accepts the plea agreement.  Regardless of whether or not the



            parties' stipulation to the several sentencing-guideline



            matters comes within the meaning of "specific sentence," it



            is clear that the parties did not agree that twelve months
                                          ___



            was "the appropriate disposition of the case" within the



            meaning of Rule 11(e)(1)(C).  Rather, the parties



            unequivocally agreed that the government would only recommend



            that term and particularly that the appropriate criminal



            history category was an open question.



                      We need not conduct an exhaustive inquiry as to



            whether the parties' agreement was truly an "11(e)(1)(C)"



            agreement, or instead, effectively an "11(e)(1)(B)"


-8-
                                          8



agreement, or perhaps, a strange hybrid of the two.6 



            Because the parties simply did not agree to a firm twelve-



            month sentence, Laguer-Avellanet cannot seek "specific



            performance" of the plea agreement to reduce his imprisonment



            term.  Moreover, contrary to Laguer-Avellanet's assertion, a



            court could not be "forced" to make the requisite sentencing



            findings in order to give effect to a plea agreement



            specifying either a certain term or a recommendation.  See
                                             __                    ___



            U.S.S.G.   6B1.2(b) & (c) (allowing court to accept a



            sentence recommendation or agreement only when it is



            satisfied that the sentence falls within the applicable



            guideline range or the sentence reflects a justifiable



            departure from that range).



                      While we find an affirmance appropriate, we offer 



            some guidance for the handling of plea agreements involving



            sentencing promises.  Where, as here, the government agreed



            only to recommend a sentence, the district court should,



            during the change of plea hearing, specifically inform the



            defendant that it is not bound by that recommendation and



            that it might impose a sentence less favorable to the



            defendant.  The court should also clearly inform the



            defendant whether or not he will have the right to withdraw



                                
            ____________________



            6.  Rule  11(e)(1)(C) governs  plea agreements  in  which the

            parties agree  "that a  specific sentence is  the appropriate

            disposition   of  the   case,"   while  11(e)(1)(B)   governs

            agreements  in   which  the  parties  agree   only  that  the

            government will recommend a particular sentence.



                                         -9-
                                          9



his guilty plea at some later time.7  Finally, the court



            should explicitly specify the status of the plea agreement: 



            whether it is accepted, rejected, or deferred pending



            consideration of the PSR.8  Here, the district court's



            procedures were much more summary and therefore subject to



            potential misunderstanding.



                      The possible remedy, however, for such shortcomings



            is not (as Laguer-Avellanet seeks here) "specific



            performance" of an agreement term to which both parties never



            agreed, but rather, the opportunity to withdraw the plea. 



            Because Laguer-Avellanet does not argue that he would have



            withdrawn his plea but for these plea colloquy deficiencies,



            he has not established prejudice from them.  At bottom,



            because Laguer-Avellanet is not entitled to the relief he



            seeks, we must affirm his sentence.


____________________



            7.  If the  plea agreement was entered into  pursuant to Rule

            11(e)(1)(B),  the defendant  must be  advised that he  has no

            right to  withdraw his plea if the  court does not accept the

            sentence recommendation.  See Fed. R. Crim. P. 11(e)(2).  If,
                                      ___

            instead, the parties agreed  under 11(e)(1)(C), and the court

            rejects that agreement, the  court must "afford the defendant

            the opportunity  to then  withdraw the  plea, and advise  the

            defendant that if the defendant persists in a guilty plea . .

            . the disposition of  the case may  be less favorable to  the

            defendant  than  that contemplated  by  the plea  agreement."

            Fed. R. Crim. P. 11(e)(4).



            8.  We note  that under  U.S.S.G.   6B1.1(c), the  court must

            defer its decision to accept or reject a plea agreement until

            it has  the opportunity  to consider the  presentence report,

            unless that report is not required under U.S.S.G.   6A1.1.



                                         -10-
                                          10



Laguer-Avellanet's final challenge is to the



            calculation of his criminal history category.  He argues



            that, assuming the court did not err in accepting and



            implementing the plea agreement, it should have granted his



            request to depart downward from the criminal history category



            of two because it significantly overrepresented the



            seriousness of his criminal history.9  The law is well



            settled, however, that "no appeal lies from a discretionary



            refusal to depart."  United States v. Morrison, 46 F.3d 127,
                                 _____________    ________



            130 (1st Cir. 1995).  Thus, this challenge is wholly



            unavailing.



                                         III.
                                         III.
                                         ____



                                      Conclusion
                                      Conclusion
                                      __________



                      For the foregoing reasons, the judgment of the



            district court is affirmed.
                              ________


____________________



            9.  Laguer-Avellanet does  not,  in this  appeal, pursue  his

            argument  that the  two prior  convictions were  not properly

            countable for  purposes of calculating  the criminal  history

            category.



                                         -11-
                                          11