
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1285                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 EDDIE CORDERO, a/k/a                                EDDIE CORDERO GARCIA,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                              _________________________                                Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Thornton  E.  Lallier,  by  appointment of  the  court,  for               _____________________          appellant.               Geoffrey  E. Hobart, Assistant  United States Attorney, with               ___________________          whom Donald K. Stern,  United States Attorney, was on  brief, for               _______________          appellee.                              _________________________                                  December 27, 1994                              _________________________                    SELYA,  Circuit  Judge.     Defendant-appellant   Eddie                    SELYA,  Circuit  Judge.                            ______________          Cordero, also known as Eddie Cordero Garcia, takes issue with the          district  court's  denial  of  his  motion  to  suppress  certain          evidence,  as well as the court's determination that he should be          sentenced  as  a career  offender.   Concluding,  as we  do, that          appellant's  legal  arguments   are  unfounded,  we   affirm  his          conviction and sentence.                                          I                                          I                    In  February  1993,  a   federal  grand  jury  indicted          appellant  on  charges  of  possessing  cocaine  with  intent  to          distribute and conspiring to commit the substantive offense.  See                                                                        ___          21 U.S.C.             841(a)(1), 846.   Appellant promptly moved  to suppress certain          evidence undergirding the indictment,  arguing that the  evidence          stemmed  from an  illegal airport  stop involving  a codefendant,          Juan Cubero Reyes (Cubero).   In June, the district  court denied          the motion.                    Appellant and  his  counsel then  negotiated a  written          plea  agreement with  the  government.    The agreement  did  not          expressly  reserve  any  right  of appeal  with  respect  to  the          antecedent  suppression ruling.  On August  30, 1993, pursuant to          the agreement,  appellant  pled  guilty to  both  counts  of  the          indictment.   Approximately six months later,  the district court          pronounced sentence.  Among  other things, the court invoked  the          career offender guidelines,  U.S.S.G.   4B1.1-4B1.2 (Nov.  1993),          and  imposed  a  188-month   incarcerative  term.    This  appeal                                          2          followed.                                          II                                          II                    Appellant's first assignment  of error need not  occupy          us  for  long.   He asseverates  that  the most  damning evidence          against him was,  by and large, the spoiled fruit  of a poisonous          tree,  see, e.g., Wong Sun v. United States, 371 U.S. 471, 484-85                 ___  ____  ________    _____________          (1963),  and that, therefore, it should have been suppressed.  We          do not reach the merits of this assertion, as appellant failed to          preserve it for review.                                          A                                          A                    In  this case, appellant  entered an unconditional plea          of guilty  to the counts of  conviction.1  Such a  plea marks the          end of one chapter  in the progress of  a defendant's case,  and,          simultaneously,  begins a  new chapter.   Thus,  an unconditional          guilty plea insulates virtually  all earlier rulings in the  case          from appellate review.   See Tollett v. Henderson, 411  U.S. 258,                                   ___ _______    _________          267 (1973).  As the Supreme Court explained:                    When  a  criminal   defendant  has   solemnly                    admitted  in open  court that  he is  in fact                    guilty  of  the  offense  with  which  he  is                    charged,   he   may   not  thereafter   raise                    independent    claims    relating   to    the                    deprivation  of  constitutional  rights  that                    occurred  prior to  the entry  of  the guilty                    plea.          Id.          ___                                        ____________________               1The Criminal  Rules do  provide an  avenue through  which a          defendant can enter a conditional guilty plea, preserving certain                                ___________          antecedent  rulings for appellate review.   See Fed.  R. Crim. P.                                                      ___          11(a)(2).    Cordero, however,  did  not  take  this route,  but,          instead, chose to enter an unconditional guilty plea.                                     _____________                                          3                    We have  assiduously followed the letter  and spirit of          Tollett, holding with monotonous regularity that an unconditional          _______          guilty  plea effectuates a waiver of any and all independent non-          jurisdictional lapses that may have marred the case's progress up          to that point, thereby absolving any errors  in the trial court's          antecedent rulings (other than  errors that implicate the court's          jurisdiction).   See, e.g.,  Acevedo-Ramos v. United  States, 961                           ___  ____   _____________    ______________          F.2d 305,  308 (1st Cir.), cert.  denied, 113 S. Ct.  299 (1992);                                     _____  ______          Valencia v. United  States, 923  F.2d 917, 920  (1st Cir.  1991);          ________    ______________          United States v. Wright, 873 F.2d 437, 442 (1st Cir.  1989).  The          _____________    ______          question in this case, then, is whether Tollett applies.                                                  _______                                          B                                          B                    Appellant strives  to bring his case  within the single          recognized  exception  to  Tollett,  theorizing  that  the  lower                                     _______          court's suppression  ruling was jurisdictional in  nature because          quashing the evidence would, in appellant's words, "have deprived          the Government  of virtually  all evidence against  Eddie Cordero          Garcia,"  and,  therefore,  would  have  precluded  a  successful          prosecution.  However, appellant  casts too wide a net:   reading          the  "jurisdictional  defect"  exception  in  so  unrestrained  a          fashion  would create a sinkhole capable  of swallowing the rule.          For purposes of the Tollett exception, a jurisdictional defect is                              _______          one that calls into doubt a court's power to entertain a  matter,          not one that merely  calls into doubt the sufficiency  or quantum          of proof relating to guilt.  Cf. Menna v. New  York, 423 U.S. 61,                                       ___ _____    _________          62  n.2 (1975) (holding  that defendant, by  pleading guilty, did                                          4          not  waive a double jeopardy  claim because, were  the claim well          founded, the  government could "not convict  petitioner no matter          how validly his factual guilt [might be] established").                    Here,  the  suppression  ruling,  even  if  erroneous,2          cannot be termed "jurisdictional" in any meaningful  sense of the          word.   After  all, suppression  of the  evidence would  not have          deprived  the  district  court of  power  to  entertain the  case          against appellant;  it would  simply have made  the prosecution's          task  more   difficult  by  making  a   conviction  less  likely.          Consequently, appellant's initial assignment of error falters.3                                          III                                         III                                        ____________________               2We do not in any  way suggest that error inheres.   Indeed,          were  we to reach the  suppression issue, it  seems unlikely that          appellant could prevail.  His brief argues, essentially, that the          government  learned  of the  evidence  in  question by  violating          Cubero's  Fourth Amendment rights.  Even if  that is so   and the          record  before us  certainly  does not  bear  out the  claim    a          defendant  cannot  succeed  in  suppressing  evidence  on  Fourth          Amendment  grounds unless he can show that his own rights, rather          than a third party's,  have been abridged.  See United  States v.                                                      ___ ______________          McDowell, 918 F.2d 1004,  1007 (1st Cir. 1990); United  States v.          ________                                        ______________          Soule,  908 F.2d 1032, 1036-37 (1st Cir. 1990); cf. United States          _____                                           ___ _____________          v. Santana, 6 F.3d 1, 8-9  (1st Cir. 1993) (suggesting that a due             _______          process defense based on  outrageous government misconduct is not          available if the  misconduct only harmed  third parties, but  not          the defendant).               3Appellant also makes a feeble attempt to loosen the grip of          the Tollett doctrine by arguing that constitutional rights cannot              _______          be waived  except  through their  "intentional relinquishment  or          abandonment."  Johnson v. Zerbst, 304 U.S.  458, 464 (1938).  But                         _______    ______          he is hoist with his own petard.  At  the change-of-plea hearing,          the district  court informed appellant that,  by pleading guilty,          he  would surrender  any right to  contest his guilt  on this, or          other, grounds.   Forewarned, appellant  nonetheless changed  his          plea.   Thus, to the extent  (if at all) that  Zerbst applies, it                                                         ______          does not profit Cordero.                                           5                    Appellant's remaining  assignment of  error is  no more          robust.   It relates to the district court's decision to classify          appellant  as a  career  offender for  purposes  of applying  the          federal  sentencing guidelines.  On  this issue, waiver  is not a          problem:  since a defendant's unconditional guilty  plea does not          automatically  waive  the right  to  appeal  matters incident  to          sentencing as  opposed to guilt, see 18 U.S.C.   3742, this issue                                           ___          is properly before  us.4   The more fundamental  problem is  that          appellant's claim lacks merit.                                          A                                          A                    In general, the career  offender provisions apply to an          adult offender who commits  a felony "that  is either a crime  of          violence  or a  controlled substance offense,"  having previously          experienced  two  or  more  convictions  for  targeted  predicate          offenses, that is, "prior felony convictions of either a crime of          violence  or a  controlled substance  offense."   U.S.S.G.  4B1.1          (Nov. 1993);  see also United  States v. Piper, 35  F.3d 611, 613                        ___ ____ ______________    _____          n.1 (1st Cir.  1994), petition  for cert. filed  (Nov. 14,  1994)                                _________________________          (No. 94-6876);  United States v. Fiore,  983 F.2d 1, 2  (1st Cir.                          _____________    _____          1992), cert. denied, 113 S. Ct. 1830 (1993).                 _____ ______                    The district  court determined that Cordero came within          the encincture of the  career offender guidelines.  To  test this          determination, we must first put it into perspective.                                        ____________________               4Of course, we recognize that some courts have enforced plea          agreements  in  which defendants  agreed  to waive  the  right to          appeal their sentences.  See, e.g., United States v. Wiggins, 905                                   ___  ____  _____________    _______          F.2d 51 (4th Cir. 1990).  Appellant's plea agreement contained no          such proviso.                                          6                    In  preparing the presentence investigation report (PSI          Report), the probation officer concluded that the career offender          provisions  applied.    The  PSI Report  premised  the  predicate          offense  component  of this  conclusion  on  two convictions  for          aggravated  assault  recorded in  San  Juan  Superior Court,  one          culminating  in the imposition of  a sentence on  April 10, 1987,          and the second  culminating in  the imposition of  a sentence  on          October  7,  1987.   Appellant  does  not  seriously contest  the          suitability  of  the later  conviction  for  use as  a  predicate          offense   in  the   career  offender   calculus.     Instead,  he          concentrates his fire on the inclusion of the earlier conviction.                    The district court gave  appellant ample time to obtain          relevant  records and marshal his  arguments.  When he originally          requested  a delay in  sentencing, the  district court  ordered a          postponement  of   roughly  eight  weeks  in   duration.    When,          thereafter, appellant sought still  more time, the district court          again obliged, granting a further seven-week continuance.  Due in          part to these extensions, the district court had before it at the          disposition  hearing, held  on February  28, 1994,  the following          information in regard to the disputed conviction:                    1.   A barebones statement in  the PSI Report                    to the effect that Cordero was arraigned on a                    charge  of aggravated assault on December 11,                    1986; that  he pled guilty to  this charge on                    January   23,  1987;   and  that   the  court                    sentenced him on April 10, 1987.                    2.  A certified copy of the charging document                    anent   this   conviction.     This  document                    memorialized   a   complaint  by   the  local                    district  attorney  against Cordero  "for the                    crime of aggravated assault,  a felony."  The                                          7                    document recounted that the  offense occurred                    "in or  about the 11th of October of 1986, in                    Rio  Piedras,  Puerto  Rico",   when  Cordero                    "illegally, voluntarily, .  . .  maliciously,                    knowingly, and with  criminal intent,  caused                    serious  bodily  harm  to  Mr.  Jesus  Cortes                    Molina,  by  means  of  force  and  violence,                    attacking  him  with  a  wooden  pool  stick,                    hitting  him  in  the  right  arm  causing  a                    fracture of the same. . . ."                    3.   A certified copy of  a document entitled                    "Sentencia,"  which described  the sentencing                    proceedings  that  took  place on  April  10,                    1987.   This document  indicated, inter alia,                                                      _____ ____                    that Cordero was  "assisted by his  attorney,                    Jose M. Ortiz-Miller," during  the sentencing                    proceedings.5          Based  on  this  information,  the  district  court  ruled,  over          objection,  that the government had proved  by a preponderance of          the evidence that the disputed conviction comprised a "countable"          crime  of violence  for  the purpose  of determining  appellant's          status as a career offender.                    Appellant offered several arguments below, two of which          he resuscitates on  appeal.  First, because the  paperwork before          the  sentencing  court  did  not  affirmatively   establish  that          appellant  was represented  by  counsel or  afforded  appropriate          warnings on January  23, 1987 (the  date on which  his guilt  was          determined),   he  claims   that  the   ensuing   conviction  was          "presumptively void" and, therefore, not fit for inclusion in the          career  offender calculus.   Second,  he castigates  the district                                        ____________________               5The  charging  papers, as  well as  the Sentencia,  were in          Spanish.   A court-appointed interpreter translated  them in open          court.   Appellant does not  impugn either the  authenticy of the          documents or the accuracy of the translation.                                          8          court  for  applying  a  preponderance-of-the  evidence  test  in          determining the adequacy of the  government's proof anent the two          prior  convictions, and  insists  that a  more rigorous  standard          should have been employed.  We consider these issues seriatim.                                                               ________                                          B                                          B                    Emphasizing our decision in United States v. Isaacs, 14                                                _____________    ______          F.3d  106,  108-10 (1st  Cir.  1994), appellant  claims  that the          documents presented to prove the predicate offense were deficient          because  they  did not  address  whether  he was  represented  by          counsel  or  afforded  a colloquy  by  the  court  at a  critical          juncture.  The claim is much too sanguine.  It overlooks entirely          the  Supreme  Court's subsequent  decision  in  Custis v.  United                                                          ______     ______          States, 114 S.  Ct. 1732 (1994).   The Custis  Court held that  a          ______                                 ______          defendant in a federal sentencing proceeding, generally speaking,          "has no  . .  .   right (with the  sole exception  of convictions          obtained in violation  of the right  to counsel) to  collaterally          attack  prior convictions."  Id. at  1734.  In so holding, Custis                                       ___                           ______          significantly  restricted  the utility  of  Isaacs.   The  Custis                                                      ______         ______          approach  applies full  bore in  this instance.   As  we recently          ruled   in  an  analogous  case,  "[a]lthough  Custis  considered                                                         ______          collateral attack under the Armed Career Criminal Act rather than          the sentencing guidelines themselves, the constitutional question          is the  same in each context."   United States v.  Munoz, 36 F.3d                                           _____________     _____          1229,  1237  (1st Cir.  1994).   We,  therefore, steer  by Custis                                                                     ______          rather than by Isaacs.                           ______                    Custis prohibits collateral attack on prior state-court                    ______                                          9          convictions in  federal sentencing proceedings unless  the attack          is rooted in a violation of the Sixth Amendment right to counsel.          Thus,  Custis  renders  nugatory  appellant's   reliance  on  the                 ______          ostensible lack of  warnings as  a basis for  brushing aside  the          April  1987 conviction.   Nonetheless, we must  still examine his          claim  insofar as it relates to the possible absence of counsel.6          But we  do not find any substantial indication in the record that          Cordero  was denied counsel or that he proceeded without counsel.          Cordero   who had personal knowledge of what transpired in 1987            did not offer any testimony to show that he was,  in fact, denied          the help of an attorney.  That omission left only the documentary          evidence   and, at worst, the documents before the district court          simply  fail to clarify whether  Cordero had counsel present when          he pleaded guilty.                    When the government seeks  to prove a predicate offense          for sentencing purposes, it has an initial burden of establishing          the existence of the conviction.  See United States v. Unger, 915                                            ___ _____________    _____          F.2d  759, 761  (1st  Cir. 1990),  cert.  denied, 498  U.S.  1104                                             _____  ______          (1991).  It can satisfy this requirement in divers ways, e.g., by                                                                   ____          an uncontroverted statement  in the PSI Report,  by introducing a          certified copy  of the judgment,  or by  some other  satisfactory          proffer.  Once the government has carried this modest burden, the          conviction  is  presumed  valid  for  purposes  of  applying  the                                        ____________________               6The record  is crystal  clear that an  attorney represented          appellant  at sentencing on  April 10, 1987.   The record is more          tenebrous, however, as to whether counsel was present on the date          appellant  entered his guilty plea.  It is this "defect" to which          appellant's hopes are fastened.                                          10          sentencing  guidelines.  See id.  It then becomes the defendant's                                   ___ ___          obligation to produce some evidence of unconstitutionality before          a  federal  court may  disregard  the  conviction for  sentencing          purposes.   See United States  v. Ruo, 943  F.2d 1274, 1276 (11th                      ___ _____________     ___          Cir. 1991); United States v. Gallman, 907 F.2d 639, 643 (7th Cir.                      _____________    _______          1990),  cert. denied, 499 U.S. 908 (1991); see also United States                  _____ ______                       ___ ____ _____________          v. Wilkinson,  926 F.2d 22, 28  (1st Cir.) ("Since  the number of             _________          felony cases  where a defendant lacks counsel must be small . . .          , a sentencing court may permissibly infer from the record of the          conviction    that    the    conviction    was    not    obtained          unconstitutionally provided  the  record contains  no  reason  to          believe the contrary."), cert. denied, 501 U.S. 1211 (1991).                                   _____ ______                    Here,   appellant  produced  no  evidence  of  a  Sixth          Amendment  violation.  He  did not himself  testify, or otherwise          swear,  that he  was  deprived of  counsel  at a  critical  time.          Rather,  he   merely  argued  that  the   government  had  failed          affirmatively to establish that a lawyer's services had been made          available to him.  Since  the law will presume, in  this context,          that a conviction was counselled absent specific evidence to  the          contrary, a defendant who desires to challenge a prior conviction          on Sixth  Amendment grounds must  do more  than merely  speculate          about  theoretical  possibilities.  In the  absence  of  specific          evidence,  the  court below  had a  right  to treat  the disputed          conviction as  constitutional and give it  weight in constructing          appellant's sentence.                                          C                                          C                                          11                    Appellant's final sentence-related argument posits that          the district court erroneously applied  the preponderance-of-the-          evidence standard  in this criminal  case.  The  argument stalls.          It is settled  beyond cavil  that facts used  at sentencing  need          only be proven  by a preponderance of the evidence,  not beyond a          reasonable doubt.  See,  e.g., United States v. Gonzalez-Vasquez,                             ___   ____  _____________    ________________          34  F.3d 19,  25 (1st Cir.  1994); United States  v. Tardiff, 969                                             _____________     _______          F.2d 1283, 1289 (1st Cir. 1992); Wright, 873 F.2d at 441.                                           ______                                          IV                                          IV                    We  need go  no further.   Appellant's  contentions are          uniformly unavailing.  Hence, his conviction and sentence endure.          Affirmed.             Affirmed.          ________                                          12
