United States v. Cruz-Agosto

102 F.4th 20

UNITED STATES of America, Appellee, v. Ángel Luis CRUZ-AGOSTO, a/k/a Bebo Sambo,t/n Angel Luis Cruz-Agosto, Defendant, Appellant.

No. 21-1892

No. 21-1893

United States Court of Appeals, First Circuit

May 14, 2024

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

Leticia Casalduc-Rabell for appellant.

Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Barron, Chief Judge, Montecalvo and Rikelman, Circuit Judges.

MONTECALVO, Circuit Judge.

Ángel Cruz-Agosto was convicted as a felon in possession of a firearm in violation of 18 U.S.C. §§ 2, 922(g)(1), and 924(a)(2) following the entry of a guilty plea pursuant to a plea agreement. Cruz-Agosto now appeals his sentences in relation to this conviction and the revocation sentence he received for committing these crimes while serving a term of federal supervised release. Cruz-Agosto focuses his appeal on an alleged breach of the plea agreement by the prosecutor at sentencing. For the reasons that follow, we affirm the sentences given by the district court.

I. Background¹

On January 8, 2020, Puerto Rico Police Department agents in an unmarked vehicle pulled up to a stopped SUV to check on the occupants. Cruz-Agosto was seated in the driver's seat when the agents approached; a woman, the passenger in the car, was also standing by the open passenger door. While talking to the passengers, one of the agents observed Cruz-Agosto pull a tan-colored pistol from his waistband area and drop it on the floor behind the front-passenger seat. The agents then ordered both individuals away from the vehicle; the agents searched the car and seized a 9mm Glock pistol and a silver Raven Arms pistol, as well as forty rounds of 9mm caliber ammunition. The Glock pistol had been modified to shoot more than one round of ammunition from a single pull of the trigger. Neither occupant had a firearms license. The agents arrested Cruz-Agosto, and a grand jury charged him with a one-count indictment. He was on federal supervised release at the time of the arrest.²

In May 2021, Cruz-Agosto entered into a plea agreement with the government. The plea agreement calculated a Total Offense Level ("TOL") of nineteen. Although the plea agreement did not calculate Cruz-Agosto's Criminal History Category ("CHC"), the parties agreed to jointly recommend a sentence of thirty-seven months' imprisonment irrespective of the CHC. The parties anticipated that Cruz-Agosto may have a higher CHC than I. The parties also agreed that Cruz-Agosto "may argue for a concurrent sentence in the revocation of supervised release . . . while the [g]overnment reserve[d] the right to argue for a consecutive sentence of [four] months of imprisonment."

On June 4, 2021, at a change-of-plea hearing, Cruz-Agosto, pursuant to the plea agreement, pled guilty to the one-count indictment as a felon who knowingly and unlawfully possessed two firearms in violation of 18 U.S.C. §§ 2, 922(g)(1), and 924(a)(2). A Presentence Investigation Report ("PSR") was subsequently prepared by the probation office. Like the parties, the PSR calculated the TOL as nineteen. However, the PSR calculated a CHC of V, due to the applicable criminal history score of eleven. Accordingly, the guidelines sentencing range ("GSR") under the United States Sentencing Guidelines was fifty-seven to seventy-one months' imprisonment.

The district court subsequently held sentencing hearings both on Cruz-Agosto's new conviction and on the revocation of his supervised release. At sentencing on the new conviction, Cruz-Agosto's counsel reiterated that the parties were jointly recommending thirty-seven months' imprisonment. In support of the parties' request for a below-guidelines sentence, Cruz-Agosto's counsel urged the court to consider his strong familial relationships and "the overrepresentation" of Cruz-Agosto's criminal history. The district court asked the government if it had anything to add, and the government responded, "just that we are standing by the plea agreement and recommendation of [thirty-seven] months."

The district court agreed with the calculations in the PSR as to the TOL and CHC. Like the PSR, based on the TOL and CHC, the district court calculated the GSR as fifty-seven to seventy-one months' imprisonment. The district court found, however, that "the sentence recommended by the parties does not reflect the seriousness of the offense, does not promote respect for the law, does not protect the public from further crimes by Mr. Cruz[,] and does not address the issues of deterrence and punishment." Accordingly, the district court sentenced Cruz-Agosto to a within-guidelines sentence of seventy-one months' imprisonment, followed by a three-year term of supervised release.³

Immediately following that hearing, the district court held a sentencing hearing for the revocation of Cruz-Agosto's supervised release. Cruz-Agosto requested a revocation sentence of twelve months' imprisonment to run concurrently with his other sentence. When it came time for the government to make its recommendation, it stated in full:

Your Honor, when [the government] and [Cruz-Agosto] negotiated this agreement, it contemplated that the government would ask for a consecutive four months on top of the sentence rendered by the [c]ourt on the new case. Now that the [c]ourt has sentenced above that recommendation, I don't necessarily feel comfortable, given the agreement, asking that the revocation be consecutive. So I will simply leave this in the [c]ourt's discretion, unless the [c]ourt wants a more specific position from the government. I don't want to run afoul of the intent of the agreement, which I see as binding on the government, Your Honor.

The district court responded that it "[did]n't think [Cruz-Agosto] w[ould] complain about [the government] requesting a concurrent sentence." The government did not reply to the court's remark nor make any further recommendation as to the revocation sentence.

The district court revoked Cruz-Agosto's supervised release after finding that Cruz-Agosto had violated the conditions of his supervised release by committing new crimes. The district court calculated the applicable guidelines range for the revocation sentence to be twelve to eighteen months' imprisonment. Accordingly, the district court sentenced Cruz-Agosto to a within-guidelines sentence of eighteen months' imprisonment to be served consecutively to the other sentence imposed.⁴

Cruz-Agosto filed timely notices of appeal as to both sentences.

II. Discussion

On appeal, Cruz-Agosto argues that the government breached its obligation under the plea agreement by not making further statements in support of the recommended sentence, by not arguing for a concurrent sentence or a maximum of a four-month consecutive sentence on the revocation, and by failing to correct a perceived error made by the district court. For the reasons that follow, we reject each of these arguments.

A. Standard of Review

Because Cruz-Agosto did not object below to the purported breaches of the plea agreement, the parties agree that our review on appeal is for plain error. See United States v. Lessard, 35 F.4th 37, 42 (1st Cir. 2022); United States v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000). Plain error requires a defendant to show: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Lessard, 35 F.4th at 42 (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). "[A]n error is deemed to affect substantial rights when it likely affected the outcome of the proceedings." United States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014).

B. Breach of Plea Agreement

"When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Lessard, 35 F.4th at 42 (cleaned up) (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). "Because plea bargaining requires defendants to waive fundamental constitutional rights, we hold prosecutors engaging in plea bargaining to the most meticulous standards of both promise and performance." Id. (quoting United States v. Clark, 55 F.3d 9, 12 (1st Cir. 1995)). Thus, "[a] defendant is entitled to the benefit of the bargain struck in the plea deal and to the good faith of the prosecutor." Id. (cleaned up) (quoting United States v. Matos-Quiñones, 456 F.3d 14, 24 (1st Cir. 2006)).

In our review, we consider the totality of the circumstances. Id. "The critical question is whether the prosecutor's 'overall conduct is reasonably consistent with making the promised recommendation, rather than the reverse.' " Id. (cleaned up) (quoting United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992)). We address each of Cruz-Agosto's arguments alleging breach in turn.

1. "Lip Service" as to the Recommended Sentence on the New Offense

Cruz-Agosto first alleges that the government breached the plea agreement by merely making a "scant, neutral statement" at the sentencing for Cruz-Agosto's new offense, "rather than affirmatively recommending," the agreed-upon downwardly variant sentence. In particular, Cruz-Agosto argues that the government -- to satisfy its obligations under the plea agreement -- is required to justify its recommendation for a significant downward variance from the GSR. In doing so, Cruz-Agosto relies heavily on our decision in United States v. Rivera-Ruiz, 43 F.4th 172 (1st Cir. 2022).

We require prosecutors to pay "more than lip service to, or technical compliance with, the terms of a plea...