United States v. Murphy-Cordero

715 F.3d 398, 2013 WL 2278596, 2013 U.S. App. LEXIS 10541
CourtCourt of Appeals for the First Circuit
DecidedMay 24, 2013
Docket12-1477
StatusPublished
Cited by21 cases

This text of 715 F.3d 398 (United States v. Murphy-Cordero) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Murphy-Cordero, 715 F.3d 398, 2013 WL 2278596, 2013 U.S. App. LEXIS 10541 (1st Cir. 2013).

Opinion

SELYA, Circuit Judge.

This sentencing appeal presents a modest set of issues that are susceptible to swift resolution. We briefly explain why we reject the defendant’s appeal and affirm his sentence.

*400 Defendant-appellant John Murphy-Cordero, a/k/a Hot Dog, pled guilty to a charge of conspiracy with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860. At sentencing, the district court fashioned a sentencing enhancement for possession of a dangerous weapon (a gun) during and in the course of the crime of conviction, see USSG § 2D1.1(b)(1), and constructed the guideline sentencing range accordingly. The court then imposed a 210-month in-carcerative sentence. This timely appeal ensued.

The appeal raises three issues.. We treat them sequentially.

We start with an issue concerning the scope of the appeal. The defendant entered his guilty plea pursuant to a nonbinding plea agreement. See Fed. R.Crim.P. 11(c)(1)(B). The plea agreement did not mention the possibility of a dangerous weapon enhancement. It did, however, contain a waiver-of-appeal provision, which stated in pertinent part that if the district court “accepts this Plea Agreement and sentences [the defendant] according to its terms, conditions and recommendations, defendant waives and surrenders his right to appeal the judgment and sentence in this case.”

At the disposition hearing, the district court referenced the waiver-of-appeal provision and suggested that it operated to limit any appeal to the propriety of the newly emergent dangerous weapon enhancement. The defendant objects to any such circumscription of his appeal.

The defendant’s objection is well-founded. The right to appeal the imposition of a criminal sentence is a substantial right and, thus, waivers of that right must be knowing, voluntary, and unequivocal. See United States v. Teeter, 257 F.3d 14, 24 (1st Cir.2001). Moreover, waiver-of-appeal provisions, like other terms and conditions memorialized in plea agreements, are construed in accordance with contract-law principles. See United States v. Ortiz-Santiago, 211 F.3d 146, 151 (1st Cir.2000).

Here, the plea agreement obligated both parties to recommend to the district court “that defendant be sentenced to one hundred and sixty-eight (168) months of imprisonment should defendant fall under Criminal History Category I, II or III.” The district court found that the defendant was in Criminal History Category III, but nonetheless eschewed the joint sentencing recommendation and sentenced him to a longer term of immurement: 210 months. The court attributed the longer sentence to the dangerous weapon enhancement and suggested that any appeal would be limited to testing the propriety of the enhancement.

The waiver-of-appeal provision does not make the fine distinction envisioned by the district court. Under its plain language, the district court’s rejection of the 168-month sentencing recommendation—a material term of the plea agreement—vitiated the waiver-of-appeal provision in its entirety. Cf. United States v. Obeid, 707 F.3d 898, 904 (7th Cir.2013) (explaining that “[t]he plain language of the [plea] agreement controls so long as its terms are unambiguous”). Consequently, the scope of this appeal is not circumscribed.

Although the defendant wins this battle, he loses the war. Each of his two remaining claims of error lacks force. We explain briefly.

First, the defendant challenges the two-level dangerous weapon enhancement. The applicable guideline provides that if, during the course of the crime of conviction, “a dangerous weapon (including a *401 firearm) was possessed” by the defendant, a two-level enhancement applies. USS6 § 2Dl.l(b)(l). The defendant posits that the record does not support the application of this guideline to his case. The defendant is wrong.

To begin, defense counsel admitted in the district court that the defendant possessed firearms during the commission of the offense of conviction. This constituted a waiver of the claim of error that he now attempts to advance. See United States v. Jimenez, 512 F.3d 1, 7 (1st Cir.2007); United States v. Rodríguez, 311 F.3d 435, 437 (1st Cir.2002). In all events, the pre-sentence investigation report (PSI Report) specifically stated that the defendant, as part and parcel of his criminal conduct, “would carry and possess firearms in furtherance of the drug trafficking organization.” The defendant did not object to any aspect of the PSI Report’s factual account, including the statement quoted above. This circumstance, without more, constitutes a sufficient basis for rejecting the defendant’s claim of error. When a fact is specifically set out in a presentence investigation report and is not the subject of a timely objection, the district court may treat the fact as true for sentencing purposes. See United States v. Medina, 167 F.3d 77, 81 (1st Cir.1999); United States v. Rosales, 19 F.3d 763, 770 (1st Cir.1994). It follows, therefore, that the dangerous weapon enhancement was adequately grounded in the record.

. This leaves only the defendant’s plaint that the district court did not sufficiently consider the factors limned in 18 U.S.C. § 3553(a) and, to make a bad situation worse, failed adequately to explain its sentencing rationale. 1 At the outset, we note that the defendant did not raise this multi-faceted objection (or any part of it) in the court below. Our review is, therefore, for plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001); United States v. Robinson, 241 F.3d 115, 119 (1st Cir.2001). There is no plain error here.

To be sure, a sentencing court is, as a general matter, obliged to consider the section 3553(a) factors in formulating a sentence'. See, e.g., United States v. Quiñones-Medina, 553 F.3d 19, 26 (1st Cir. 2009); United States v. Martin, 520 F.3d 87

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Bluebook (online)
715 F.3d 398, 2013 WL 2278596, 2013 U.S. App. LEXIS 10541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-murphy-cordero-ca1-2013.