United States v. Cueto-Nunez , 869 F.3d 31 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1700
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO CUETO-NÚÑEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Arza Feldman, Steven A. Feldman, and Feldman and Feldman, on
brief for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.
August 25, 2017
BARRON, Circuit Judge. Julio Cueto Núñez pled guilty to
one count of attempting to enter the United States after previously
having been removed from the United States due to an aggravated
felony, in violation of 8 U.S.C. § 1326(b)(2). Cueto was sentenced
to a 57-month term of imprisonment, followed by a 3-year term of
supervised release, subject to thirteen so-called "standard"
conditions. Cueto now challenges a number of different aspects of
his sentence. We affirm.
I.
Cueto, a citizen of the Dominican Republic, was removed
from the United States in 2010, following his convictions for
several offenses including robbery and possession of a weapon
without a license in the Superior Court of San Juan, Puerto Rico.
More than five years later, on November 8, 2015, a vessel with
Cueto (along with sixty other people) on board was apprehended by
the United States Coast Guard. Cueto was then transferred into
the custody of the United States Border Patrol.
On November 12, 2015, Cueto was charged with one count
of violating 8 U.S.C. § 1326(b)(2), a statute that prohibits an
"alien previously removed from the United States subsequent to a
conviction for an aggravated felony" from "knowingly and
intentionally attempt[ing] to enter the United States" without
first having obtained the consent of the Attorney General or the
Secretary of Homeland Security "to reapply for admission into the
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United States." Id. On February 16, 2016, Cueto waived the right
to an indictment and, the same day, pled guilty to a one-count
information, pursuant to a plea agreement.
Cueto's plea agreement set forth his base offense level
under the United States Sentencing Guidelines as eight, pursuant
to U.S.S.G. § 2L1.2(a). The parties then recommended the following
adjustments to this proposed base offense level: first, pursuant
to U.S.S.G. § 2L1.2(b)(1)(A), a sixteen-point upward adjustment
because Cueto was previously removed after a conviction for a crime
of violence; second, pursuant to U.S.S.G. § 3E1.1(a) and (b), a
three-point downward adjustment for acceptance of responsibility;
and third, pursuant to U.S.S.G. § 5K3.1, a two-point downward
adjustment because of Cueto's participation in a "fast-track"
early disposition program. Thus, the total offense level
recommended to the District Court by the parties in the plea
agreement was nineteen. The plea agreement did not, however, state
Cueto's criminal history category. Instead, the plea agreement
set forth a table of recommended sentencing ranges based on Cueto's
proposed total offense level of nineteen. As a result, the parties
agreed "to recommend a sentence at the lower end of the applicable
Guideline Sentencing Range for a total offense level of 19 when
combined with [Cueto's] criminal history category as determined by
the Court."
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Prior to Cueto's sentencing hearing, the Probation
Office prepared a presentence investigation report (PSR). The
PSR, too, determined that Cueto's base offense level was eight.
And, like the plea agreement, the PSR calculated a total offense
level by applying a sixteen-level upward adjustment to the base
offense level because of Cueto's prior removal after a conviction
for a crime of violence, pursuant to § 2L1.2(b)(1)(A) of the
guidelines, and a three-level downward adjustment because of
Cueto's acceptance of responsibility and cooperation with
authorities, pursuant to § 3E1.1(a) and (b). The PSR, however,
did not apply the two-level "fast-track" downward adjustment
recommended in the plea agreement. Thus, the PSR determined that
Cueto's total offense level was twenty-one. Nevertheless, the PSR
did provide that "[a]s the defendant has entered into a plea
agreement," he would "benefit from a two (2) level adjustment for
participating in the Fast-Track Program." After examining Cueto's
prior conviction record, the PSR then determined that Cueto's
criminal history category was IV. On the basis of Cueto's total
offense level of twenty-one and criminal history category of IV,
the PSR specified that the recommended Guidelines Sentencing Range
applicable to Cueto was fifty-seven to seventy-one months of
imprisonment.
Cueto was sentenced on May 10, 2016. At sentencing, the
District Court also calculated a base offense level of eight for
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Cueto, pursuant to U.S.S.G. § 2L1.2(a). In calculating Cueto's
total offense level, the District Court then applied a sixteen-
level upward adjustment because of Cueto's prior removal after a
conviction for a crime of violence, pursuant to § 2L1.2(b)(1)(A)
of the guidelines, and a three-level downward adjustment for
acceptance of responsibility, pursuant to § 3E1.1(a) and (b) of
the guidelines. The District Court, however, declined to apply
the "fast-track" downward adjustment, "because of Mr. Cueto's
criminal history." Thus, the District Court set Cueto's total
offense level at twenty-one. A total offense level of twenty-one,
combined with a criminal history category of IV, yielded a
guidelines sentencing range of fifty-seven to seventy-one months'
imprisonment. Despite the government's advocating a sentence of
forty-six months of imprisonment, the District Court sentenced
Cueto to a term of imprisonment of fifty-seven months, and a term
of supervised release of three years. The term of supervised
release was accompanied by the requirement that Cueto observe "the
standard conditions of supervised release recommended by the
United States Sentencing Commission and adopted by this Court."
Cueto now appeals both the term of imprisonment and the
conditions of supervised release.1
1 While Cueto's plea agreement contained a waiver of his right
to appeal "the judgment and sentence in this case," provided that
Cueto was "sentenced in accordance with the terms and conditions
set forth in the Sentencing Recommendation provisions of this Plea
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II.
Cueto challenges the term of imprisonment on three
grounds: first, that the District Court erred procedurally in not
accepting the government's recommendation for a "fast-track"
adjustment; second, that the District Court erred procedurally by
inadequately explaining the term of imprisonment and by failing to
consider certain mitigating factors; and third, that the District
Court erred substantively in imposing an unreasonable term of
imprisonment. We consider each contention in turn.
A.
Section 5K3.1 of the guidelines, the "fast-track"
provision, provides that "[u]pon motion of the Government, the
court may depart downward not more than four levels pursuant to an
early disposition program authorized by the Attorney General of
the United States and the United States Attorney for the district
in which the court resides." (emphasis added). Cueto acknowledges
that the word "may" in that provision gives a district court the
discretion to determine whether to apply that downward adjustment
or not, and thus we review this preserved challenge for abuse of
Agreement," the government acknowledges that this waiver does not
bar Cueto's challenges. The government notes that the "Sentencing
Recommendation" section of the plea agreement "recommend[ed] a
sentence at the lower end" of a guidelines range calculated on the
basis of a total offense level of nineteen, while Cueto was
sentenced on the basis of a total offense level of twenty-one, and
thus the government agrees with Cueto that his waiver is
unenforceable.
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discretion. See United States v. Ruiz-Huertas, 792 F.3d 223, 226
(1st Cir.) (citing United States v. Flores-Machicote, 706 F.3d 16,
20 (1st Cir. 2013)(noting that courts of appeals' evaluation of a
sentencing court's "judgment calls for abuse of discretion"),
cert. denied, 136 S. Ct. 258 (2015)); United States v. Shand, 739
F.3d 714, 716 (2d Cir. 2014) (holding that § 5K3.1 "vests sole
discretion to grant departures on Government motions with district
court judges."). But, Cueto argues, the District Court abused its
discretion because it first accepted Cueto's guilty plea pursuant
to a plea agreement that obligated the government to move for a
fast-track adjustment and then declined to apply that adjustment,
thereby depriving Cueto of "the benefit of the bargain."
We are not persuaded. The plea agreement was a bargain
struck with the government, in which the government agreed to
recommend a two-level downward fast-track adjustment. And the
government did so, stating at sentencing that "the United States
stands by the plea agreement" and "recommend[s] a sentence of 46
months." The plea agreement -- executed pursuant to Rule
11(c)(1)(B) of the Federal Rules of Criminal Procedure -- did not
obligate the District Court to sentence the defendant in accordance
with the government's recommendations when the District Court
accepted Cueto's guilty plea. See Fed. R. Crim. P. 11(c)(1)(B)
(noting that attorneys for the government and the defendant may
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agree to "recommend . . . a particular sentence or sentencing
range" (emphasis added))".
Cueto separately contends that, given the District
Court's apparent concerns about his criminal history, the
Magistrate Judge who presided over Cueto's change-of-plea hearing
"should have told him" at that hearing "that [the District Court]
would not accept [the] agreement." In pressing this contention,
Cueto points to a portion of his change-of-plea colloquy where he
suggests that the Magistrate Judge "induced the plea by promising
the fast-track departure."
The record belies this contention, however. During the
exchange Cueto identifies, the record reflects the Magistrate
Judge's statement that the Magistrate Judge possessed an "original
of [Cueto's] fast track plea agreement, which is being made
pursuant to Rule 11(c)(1)(b)." The Magistrate Judge thus
accurately described the plea agreement itself, which is entitled
a "fast track plea agreement." Nowhere in the portion of the
change-of-plea colloquy that Cueto points to did the Magistrate
Judge suggest that Cueto was guaranteed the benefit of the two-
level fast-track adjustment. In fact, the record shows that the
plain terms of the plea agreement reflected the advisory nature of
that agreement, and that the Magistrate Judge explained to Cueto
at his change-of-plea hearing that "any sentence imposed by the
Court is entirely in the discretion of the sentencing Judge" and
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thus "that the terms that appear on the plea agreement are only a
recommendation and [thus] not mandatory."
B.
As a fallback, Cueto contends that, even if the District
Court properly calculated the guidelines range applicable to him,
the District Court erred by failing to articulate its reasons for
imposing the term of imprisonment that the District Court imposed.
Because Cueto did not make this objection to the District Court,
our review is for plain error. United States v. Pérez, 819 F.3d
541, 546 (1st Cir. 2016). "To establish plain error, an appellant
must show that (1) an error occurred (2) which was clear or obvious
and which not only (3) affected the appellant's substantial rights
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id. at 546-47 (citation and
modifications omitted). Cueto cannot show plain error here.
We have previously explained that, where, as here, "the
court imposes a sentence that comes within the [guidelines
sentencing range], the burden of adequate explanation is
lightened." Id. at 547 (citation omitted). We have further noted
that, in a situation like this one, involving a within-guidelines
sentence, "it is sufficient for the sentencing court simply to
identify the main factors driving its determination." United
States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir. 2016)
(citation omitted).
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Here, the record reveals that the District Court
emphasized that it "considered the . . . sentencing factors set
forth" in 18 U.S.C. § 3553(a), described several aspects of Cueto's
biography, and then explained that the sentence the District Court
imposed "reflects the seriousness of the offense, promotes respect
for the law, protects the public from further crimes by Mr. Cueto,
and addresses the issues of deterrence and punishment." The
District Court's explanation thus closely matches the explanation
we upheld in Pérez as "sufficient" on plain error review "to
satisfy [the] lightened burden" of explaining a within-guidelines
sentence. See 819 F.3d at 547.
Cueto does separately contend that the District Court
failed to consider certain mitigating factors about his biography,
including his "traumatic childhood." But, we have held that the
fact that "the district court handed down a harsher sentence than
[the defendant] desired does not reveal an inattentiveness" to the
mitigating factors the defendant wished the District Court to
consider, "but rather that [the District Court] weighed them
differently than [the defendant] did." United States v. Butler-
Acevedo, 656 F.3d 97, 101 (1st Cir. 2011). Moreover, we must give
the District Court's statement that it considered the sentencing
factors set forth in § 3553(a) "some weight." United States v.
Vega-Salgado, 769 F.3d 100, 105 (1st Cir. 2014).
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Here, the "difficult" nature of Cueto's childhood, among
other mitigating factors, was brought to the District Court's
attention during sentencing, and the District Court later
summarized other portions of Cueto's personal history. We thus
conclude that the District Court did not commit a clear or obvious
error in failing to explain specifically why it did not believe
that those mitigating factors merited a below-guidelines sentence.
See Butler-Acevedo, 656 F.3d at 101 (noting that district courts
are "not required to address each" of the § 3553(a) factors, "one
by one, in some sort of rote incantation" (modifications omitted)).
C.
Finally, Cueto contends that the District Court erred by
imposing a term of imprisonment that was substantively
unreasonable, particularly given the District Court's departure
from the recommendation made by the government. Cueto contends
that he preserved this challenge by "challenging the denial of
fast-track relief" and thus "request[ing] a lower sentence than
the one he received." On that basis, Cueto contends that our
review is for abuse of discretion. We need not resolve the
question whether Cueto preserved this challenge, however. We have
previously explained that the standard of review that applies to
a defendant's unpreserved challenge to the substantive
reasonableness of his sentence is "somewhat blurred," Ruiz-
Huertas, 792 F.3d at 228. Here, as in Ruiz-Huertas, "we need not
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resolve this apparent anomaly," for even "[a]ssuming, favorably to
the defendant, that the abuse of discretion standard applies, the
outcome would be the same." Id.
We further explained in that case that "[a] challenge
directed at substantive reasonableness is usually a heavy lift,
and reversal is particularly unlikely when the sentence fits within
the compass of a properly calculated guideline sentencing range."
Id. at 228-29 (citations and modifications omitted). Cueto, who
points to nothing in the record that would make the District
Court's choice of a sentence at the low end of the range under the
sentencing guidelines a substantively unreasonably one, cannot
make that heavy lift here.
III.
Cueto also challenges nine of the standard conditions of
supervised release that the District Court imposed. He contends
that a number of them are too vague, another is too onerous because
it fails to consider his financial circumstances, and yet another
violates his Fifth Amendment rights. For support, he cites United
States v. Kappes, which concluded that a number of similar
conditions failed plain error review. 782 F.3d 828, 844 (7th Cir.
2015). He also contends that, in any event, the District Court
failed to provide an adequate explanation as to why these
conditions, or at least why all of them, were imposed on him.
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The government responds, initially, that, because Cueto
is almost certain to be removed upon his release -- and is
therefore extremely unlikely to be subjected to the conditions he
takes issue with -- his challenge to these conditions of release
is not ripe. We addressed a similar issue in United States v.
Medina, 779 F.3d 55, 66-67 (1st Cir. 2015). There, the defendant,
a sex offender, challenged the "District Court's requirement that
he submit to penile plethysmograph, or PPG, testing, if the sex
offender treatment program he must participate in as a condition
of his supervised release requires such testing." Id. at 64. The
government contended that the challenge was not ripe because the
"PPG-testing condition[]" was a "contingent" one, insofar as there
was some uncertainty as to whether the defendant would, in fact,
be required to undergo that form of testing. Id. at 66. We
disagreed. Id. at 67. We explained that "a challenge to even a
contingent supervised release condition" may be "ripe, and 'not
hypothetical'" as long as the "judgment explicitly spell[s] out
the condition and the defendant challenge[s] 'the . . . condition
itself, not its application or enforcement.'" Id. at 66 (quoting
United States v. Davis, 242 F.3d 49, 51 (1st Cir. 2001) (per
curiam)). We further explained that the defendant "was sentenced
to thirty months in prison in July of 2013," which meant that, at
the time our opinion was issued in March of 2015, the defendant
"could be subject to the condition he challenges in the near term,
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when he is released from prison and the treatment program
commences." Id. at 67. And, in Davis, on which Medina relied, we
explained in holding that the defendant's challenge to the
supervised release condition at issue was "not hypothetical" that
the defendant's "term of supervised release will commence in less
than two months," at which point the defendant would "be subject
to the challenged condition imposed by the district court." Davis,
242 F.3d at 51.
Here, Cueto still has forty-nine months left in his
sentence. Moreover, as the government points out, Cueto conceded
in his plea agreement that "he has no legal status in [this
country] . . . and will likely be removed from the United States
upon completion of his sentence." In fact, the government notes
in its briefing to us -- and Cueto does not dispute -- that the
"Department of Homeland Security has already lodged a detainer for
Cueto's arrest because he is an illegal alien subject to removal
and deportation proceedings." The government thus contends that,
unlike in Davis and Medina, "it is a matter of conjecture" whether
Cueto will be subjected to the standard conditions of supervised
to which he objects.
Despite the features of this case that appear to make it
different from Medina and Davis, Cueto makes no argument on appeal
as to why his challenge to these conditions is ripe. But, even if
we were to overlook Cueto's failure in that regard and assume that
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his challenge to these conditions is ripe for review, it would
fail. As the government points out, Cueto never raised any
objections below to the conditions that he now challenges, even
though the guidelines themselves "flatly recommend the standard
conditions" of supervised release, United States v. Tulloch, 380
F.3d 8, 13 (1st Cir. 2004) (citing U.S.S.G. § 5D1.3(c)); Cueto's
plea agreement referenced a term of three years' supervised release
as included within the maximum penalty to which Cueto could be
sentenced and separately noted that Cueto's sentence "[would] be
imposed in accordance with the [g]uidelines"; and the District
Court explicitly stated at sentencing that, "[u]pon release from
confinement, Mr. Cueto shall be placed on supervised release for
a term of three years" and that Cueto "shall observe the standard
conditions of supervised release recommended by the United States
Sentencing Commission and adopted by this Court." Thus, Cueto
must meet the demanding test imposed by the plain error standard
of review, which requires him to show that "(1) an error occurred
(2) which was clear or obvious and which not only (3) affected the
appellant's substantial rights but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial
proceedings." Pérez, 819 F.3d at 546-47; see United States v.
Roy, 506 F.3d 28, 30 (1st Cir. 2007) (noting that the plain error
test "set[s] a very high threshold and deliberately so"). But,
Cueto makes no argument on appeal as to how he can satisfy this
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demanding standard, as he contends only that our review must be
for abuse of discretion.
Of course, in challenging the conditions as too vague or
onerous, Cueto does rely on Kappes. And Kappes found the
conditions at issue there invalid even in the event that plain
error applied. 782 F.3d at 844. But Cueto makes no argument as to
why we must do similarly in considering his challenge to these
conditions. And he fails to make any such argument notwithstanding
that our own precedent approves a number of the conditions that
Cueto now challenges, see United States v. Stergios, 659 F.3d 127,
134 (1st Cir. 2011) (concluding that, should a defendant find his
conditions of supervised release, as implemented by the probation
officer, "unduly restrictive upon his release, he need only speak
with his supervising officer and, if that does not succeed, raise
the issue with the district court"); United States v. Padilla, 415
F.3d 211, 214, 221-22 (1st Cir. 2005) (en banc) (rejecting a
delegation-based challenge to the authority of a probation officer
"to determine the maximum number of [drug] tests to be
administered" during the defendant's term of supervised release);
rejects another of his challenges for reasons that apply here as
well, see United States v. York, 357 F.3d 14, 24-25 (1st Cir. 2004)
(rejecting a Fifth Amendment-based challenge to the condition that
requires a defendant to "answer truthfully all inquiries by the
probation officer and follow the instructions of the probation
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officer"), and there is out-of-circuit precedent that, contra
Kappes, approves the rest of the challenged conditions, see United
States v. Llantada, 815 F.3d 679, 682 (10th Cir. 2016); United
States v. Muñoz, 812 F.3d 809, 819 (10th Cir. 2016); United States
v. Phillips, 704 F.3d 754, 768 (9th Cir. 2012); United States v.
Soltero, 510 F.3d 858, 866-67 (9th Cir. 2007) (per curiam); United
States v. Nash, 438 F.3d 1302, 1307 (11th Cir. 2006) (per curiam).
Cueto separately contends that the District Court
plainly erred in failing to provide sufficient explanation for its
decision to impose the standard conditions of supervised release
that he now challenges. We reject this challenge, too. We have
already noted that the "[g]uidelines flatly recommend the standard
conditions, without qualification[] or prerequisite." Tulloch,
380 F.3d at 13. We further explained in United States v.
Garrasteguy, 559 F.3d 34, 42 (1st Cir. 2009), that "[a]ny
conditions of supervised release that a sentencing court chooses
to impose must, of course, be supported by the record." But, we
emphasized, "this requirement can be satisfied without a written
or oral explanation of the reasons supporting the condition if we
can infer the court's reasoning by comparing what was argued by
the parties or contained in the pre-sentence report with what the
court did." Id. On appeal, Cueto does not point to any specific
condition of supervised release that he contends were unjustified
in light of the record before the District Court. [Blue Br. 30]
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Thus, we conclude that Cueto cannot show that the District Court
plainly erred in providing the level of explanation concerning the
imposition of the standard conditions of supervised release that
Cueto now challenges.
For these reasons, we reject Cueto's challenge to the
nine separate conditions of supervised release to which he objects.
IV.
For these reasons, the judgment of the District Court
is affirmed.
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