United States v. Sanchez-Colberg , 856 F.3d 180 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2522
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTIAN SÁNCHEZ-COLBERG,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
William S. Maddox on brief for appellant.
Tiffany V. Monrose, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
May 8, 2017
HOWARD, Chief Judge. Christian Sánchez-Colberg pleaded
guilty to two drug- and weapons-related charges; in exchange, the
government dismissed others. Sánchez now appeals his sentence,
attacking its procedural and substantive reasonableness. Although
Sánchez's plea agreement does not bar this appeal, his challenges
ultimately fail on their merits. We affirm.
I. Background
Puerto Rico law enforcement officers encountered Sánchez
and his codefendant while searching abandoned apartments in an
unrelated case. The officers found Sánchez with cocaine,
marijuana, drug ledgers, cash, ammunition, and two handguns -- one
of which was modified to fire automatically.1 Sánchez eventually
entered guilty pleas to possessing marijuana with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and possessing
firearms in furtherance of a drug-trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A)(i). In exchange, the government agreed
to dismiss other charges -- one of which carried a mandatory 30-
year-minimum sentence. See id. § 924(c)(1)(B)(ii).
In the plea agreement, the parties stipulated that the
appropriate guidelines sentencing range for the marijuana charge
1 Because Sánchez pleaded guilty, we draw the facts "from the
plea agreement, the change-of-plea colloquy, the Pre-Sentence
Investigation Report ('PSR'), and the transcript of the sentencing
hearing." United States v. Cruz-Vázquez, 841 F.3d 546, 547 n.1
(1st Cir. 2016).
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was 0-6 months' incarceration, and agreed to recommend a sentence
"at the higher end." The firearms charge carried a statutorily
required consecutive incarcerative term of at least 60 months, and
the parties identified the guidelines range as that statutory
minimum. See id. § 924(c)(1)(A)(i); U.S.S.G. §2K2.4(b) (2014).
On that count, however, the plea agreement contemplated an above-
guidelines sentence: Sánchez could argue for as few as 96 months,
and the government could "request a . . . term of imprisonment of
up to one hundred and fifty-six (156) months." The agreement
further provided that Sánchez would waive his right to appeal, so
long as the court sentenced him "according to its terms,
conditions, and recommendations."
At the sentencing hearing, Sánchez asked the judge to
impose a 6-month sentence on the marijuana charge and a 96-month
sentence on the firearms charge (102 months total). The government
also recommended a 6-month sentence on the marijuana charge, but
requested a 144-month sentence for the firearms (150 months total).
The district court accepted the parties' recommendation on the
marijuana charge, but found insufficient "the sentence that both
the government and the defense recommended" on the firearms charge.
The court then sentenced Sánchez to the top of the range specified
in the plea agreement for the § 924(c) violation: 156 months (for
a total incarcerative sentence of 162 months). Sánchez did not
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object at the sentencing hearing; in this timely appeal, however,
he argues that the sentence was unreasonable.
II. Analysis
Before addressing the merits, we first determine whether
this appeal falls within the waiver of appeal to which Sánchez
agreed. See United States v. Betancourt-Pérez, 833 F.3d 18, 21
(1st Cir. 2016). It does not.
A. Waiver
A plea agreement's appeal-waiver provision "is valid if
it was knowingly and voluntarily executed, and if enforcement would
not result in a miscarriage of justice." United States v.
Santiago-Burgos, 750 F.3d 19, 22 (1st Cir. 2014). "But '[e]ven a
knowing and voluntary appeal waiver only precludes appeals that
fall within its scope.'" Id. at 22-23 (alteration in original)
(quoting United States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007)).
When determining such a provision's scope, "we rely on basic
contract interpretation principles, construing the agreement where
possible to give effect to every term and phrase, and construing
any ambiguities in favor of allowing the appeal to proceed." Id.
at 23 (citations omitted).
Sánchez's plea agreement contains this appeal-waiver
provision: "Defendant hereby agrees that if this Honorable Court
accepts this Plea and Forfeiture Agreement and sentences him
according to its terms, conditions, and recommendations, Defendant
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waives and surrenders his right to appeal the judgment and sentence
in this case."
The agreement's "Sentence Recommendation" provision
reads, in its entirety:
As to [the marijuana count] the parties agree to
recommend a sentence of imprisonment at the higher end
of the above referenced guideline calculation. As to
[the firearms count] the defendant can request a
consecutive term of imprisonment of ninety-six (96)
months and the Government can request a consecutive term
of imprisonment of up to one hundred and fifty-six (156)
months. The parties agree that any recommendation by
either party for a term of imprisonment below or above
the stipulated sentence recommendation constitutes a
material breach of the Plea and Forfeiture Agreement.
Sánchez argues that the appeal-waiver provision does not
apply because the district court sentenced him to 156 months on
the firearms count, but he requested 96 months and the government
sought only 144 months -- so the court did not sentence him
"according to" the parties' "recommendations." The government
counters that, because it was permitted to ask for a 156-month
sentence on the firearms count, Sánchez's ultimate sentence "was
within the range contemplated by the parties in the plea
agreement," and he was thus sentenced according to the agreement's
terms and conditions.
"Plea agreements should be given their plain meaning."
United States v. Ocasio-Cancel, 727 F.3d 85, 89 (1st Cir. 2016).
But here, the meaning of Sánchez's plea agreement is ambiguous.
The appeal-waiver provision bars any appeal from a sentence in
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accordance with the agreement's "terms, conditions, and
recommendations." (emphasis added). The underlined language is
not meaningless: because we "constru[e] the agreement . . . to
give effect to every term and phrase," Santiago-Burgos, 750 F.3d
at 23, we do not read the appeal-waiver provision's inclusion of
"recommendations" as mere surplusage.2 See United States v.
Garcia, 698 F.2d 31, 36 (1st Cir. 1983) (rejecting a plea-agreement
construction that would "render the language mere surplusage")
(quoting United States v. Bowler, 585 F.2d 851, 854 (7th Cir.
1978)).
The agreement's ambiguity lies in the meaning of the
phrase "its . . . recommendations." The phrase could simply refer
to any sentence within the "stipulated sentence recommendation"
contained within the agreement's four corners. But the phrase
could also refer more narrowly to the parties' actual requests at
sentencing for a term of imprisonment, so long as those requests
are within the agreement's textually specified sentencing range.
Cf. United States v. Ríos-Hernández, 645 F.3d 456, 459, 461-62
(1st Cir. 2011) (construing "its . . . recommendations" to be
limited by the parties' agreement to recommend a sentence at the
2 This language distinguishes Sánchez's case from others in
which we construed appeal-waiver provisions lacking such a term.
See, e.g., United States v. Morales-Arroyo, No. 15-1185, 2017 WL
1395753, at *1 (1st Cir. Apr. 19, 2017); Betancourt-Pérez, 833
F.3d at 22.
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lower end of the applicable guideline range). The phrase's meaning
as used in the agreement is thus ambiguous. And, because we
construe plea-agreement ambiguity against the government, we hold
that Sánchez's appeal is not within the appeal-waiver provision's
scope, and accordingly proceed to the merits. See United States
v. Newbert, 504 F.3d 180, 185 (1st Cir. 2007).
B. Sentencing Error
Sánchez's sentencing-error arguments, however, fail on
their merits. We review these claims in two steps: "we first
determine whether the sentence imposed is procedurally reasonable
and then determine whether it is substantively reasonable." Cruz-
Vázquez, 841 F.3d at 549 (quoting United States v. Clogston, 662
F.3d 588, 590 (1st Cir. 2011)).
1. Procedural reasonableness
Sánchez contends that his sentence was procedurally
unreasonable because the district court "did not articulate a basis
for exceeding the recommendations of the parties." See Gall v.
United States, 552 U.S. 38, 51 (2007) (procedural error includes
"failing to adequately explain the chosen sentence"). Because
Sánchez did not preserve this argument by raising it below, we
review only for plain error. See United States v. Bermúdez-
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Meléndez, 827 F.3d 160, 164 (1st Cir. 2016).3 There was no error
here, plain or otherwise.
"To satisfy its burden of explanation, the sentencing
court need do no more than identify the main factors behind its
decision." Id. The sentencing court met that obligation here.
As acknowledged by Sánchez in his brief, the court determined,
among other findings, that the parties' sentencing requests did
"not reflect the seriousness of the offense," which included
possession of "two powerful weapons[,] one of which is modified to
shoot automatically," in addition to "the ammunition . . . [drugs],
drug ledgers, and drug paraphernalia." This explanation sufficed
to meet the procedural-reasonableness requirement. See id. at
164-65 (finding no procedural error when explanation reflected
defendant's possession of an "impressive array of munitions,"
including an assault rifle, "in close proximity to a trove of
illegal drugs").
One final note on procedural reasonableness: to the
extent that Sánchez asserts that the court erred by not explaining
why it rejected the parties' requested sentences, the law does not
support him. "Although a sentencing court typically has a duty to
3 Sánchez urges that United States v. Guzman-Fernandez, 824
F.3d 173 (1st Cir. 2016), requires abuse-of-discretion review for
unpreserved procedural-reasonableness claims. Guzman-Fernandez,
however, dealt with a preserved claim. Id. at 176 ("Guzman's
counsel 'objected' . . . .") (alteration omitted).
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explain why it selected a particular sentence, it has 'no corollary
duty to explain why it eschewed other suggested sentences.'" Id.
at 165 (quoting United States v. Vega-Salgado, 769 F.3d 100, 104
(1st Cir. 2014).
2. Substantive reasonableness
Having established that the sentence was not
procedurally unreasonable, we turn to its substantive
reasonableness. Once again, Sánchez did not object below.
Consistent with our recent cases, and favorably to Sánchez, we
assume arguendo that abuse-of-discretion review applies. See
Cruz-Vázquez, 841 F.3d at 549 & n.2. We nevertheless reject the
substantive-reasonableness claim.
"The essence of appellate review for substantive
reasonableness is whether the sentence is the product of 'a
plausible . . . rationale and a defensible result.'" United States
v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015) (quoting United
States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)). Sánchez argues
that his sentence was substantively unreasonable because he
received a greater sentence than did his codefendant, even though
there was no reason for the disparity. Though we may find cause
for concern when one judge sentences "identically situated
defendants" differently, that is not the case here -- and Sánchez
makes no effort to explain why he and his codefendant are
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identically situated. United States v. Reyes-Santiago, 804 F.3d
453, 467 (1st Cir. 2015) (citation omitted).
In fact, Sánchez posits a distinction between the two
men: he claims that his codefendant -- not he -- possessed the
machine gun, because the label on the evidence bag containing the
machine gun did not list Sánchez's name. The record, however,
supports a finding that Sánchez possessed the machine gun.4 The
plea agreement memorializes that Sánchez "did knowingly possess
[both] firearms," which Sánchez acknowledged by initialing the
paragraph describing the two weapons. And later, during the plea
colloquy, the district court advised Sánchez that the firearms
count alleged that he "knowingly possessed firearms," described
both weapons in detail, and asked Sánchez "is that what you did?
. . . Is that what you're pleading guilty to?" Sánchez replied
"Yes." Accordingly, because Sánchez has not demonstrated either
that he and his codefendant were "identically situated" or that
Sánchez was less culpable, his disparity argument fails. See id.("We have routinely rejected disparity claims . . . because
complaining defendants typically fail to acknowledge material
4 There may be a hint of an ineffective-assistance-of-counsel
argument in Sánchez's brief, but "[w]e normally do not consider
such claims on direct appeal where . . . they were not first
presented to the district court." United States v. Hallock, 941
F.2d 36, 43 (1st Cir. 1991).
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differences between their own circumstances and those of their
more leniently punished confederates.").
Finally, Sánchez argues that his sentence on the
firearms count was substantively unreasonable insofar as the court
varied upward from the guidelines sentence. As Sánchez
acknowledges, however, the parties themselves recommended an
upwardly variant sentence. It was not unreasonable for the court
to impose a sentence within the parties' bargained-for range. See
Rivera-González, 776 F.3d at 52 (finding upwardly variant sentence
substantively reasonable when "it produced the same aggregate
period of incarceration to which the parties had previously agreed"
in plea agreement).
III. Conclusion
For the reasons stated, we hold that the plea agreement
does not bar this appeal, but we affirm the sentence.
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