
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          July 12, 1996         [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                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
