United States v. Valdez

964 F.3d 117

UNITED STATES of America, Appellee,

v.Hector VALDEZ, a/k/a Arnaldo Lopez, a/k/a Jose Ocasio, a/k/a Jose Altagracia, a/k/a Jorge Figueroa, a/k/a Hector Nunez, a/k/a Jesus Perez, a/k/a Ramon Alvarez Vegas, a/k/a Hector Boli var Valdez Nunez, a/k/a Boli, Defendant, Appellant.

No. 19-1129

United States Court of Appeals, First Circuit.

July 9, 2020

Robert B. Mann and Robert B. Mann Law Office on brief for appellant.

Donald C. Lockhart, Assistant United States Attorney, and Aaron L. Weisman, United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

LYNCH, Circuit Judge.

The defendant, Hector Valdez, pleaded guilty pursuant to a plea agreement and was sentenced on January 18, 2019, to 108 months' imprisonment and three years' supervised release for his role in a major drug conspiracy that distributed heroin and other drugs in Rhode Island, Massachusetts, and Connecticut. Although the plea agreement he signed contained an appeal waiver, he now appeals anyway, arguing that upholding the validity of the appeal waiver would constitute a "miscarriage of justice." Specifically, Valdez argues that the district court erred in its consideration of the First Step Act, which was enacted after Valdez signed the plea agreement but before he was sentenced. See Pub. L. 115-391, 132 Stat. 5194 (codified in scattered sections of 18 U.S.C. and 34 U.S.C.).

The sentence the district court imposed was well below the guideline range, was below the government's recommended sentence, and explicitly accounted for the impact of the First Step Act. There was no miscarriage of justice. The appeal waiver controls, and this appeal is dismissed.

A. Background of the Offense and the Plea Agreement

Valdez was arrested on April 11, 2017, along with his brothers Juan and Claudio and others, for his role in a conspiracy to distribute kilogram quantities of heroin (sometimes laced with fentanyl) and cocaine and other quantities of cocaine base (crack cocaine) and opioids in pill form throughout Rhode Island, Massachusetts, and Connecticut. The arrests were the result of a multi-year investigation conducted by ten different law enforcement agencies. Valdez was charged with conspiring to distribute, and to possess with intent to distribute, one kilogram or more of heroin, and also substances containing fentanyl, cocaine base, and cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. He was also charged with illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2).

All three brothers had prior drug trafficking convictions, and each had been deported previously. All three were leaders and organizers of the drug conspiracy, but Hector Valdez played more of a supporting role. He was, as described in the Presentence Investigation Report ("PSR"), "perhaps the least culpable of the three Valdez brothers," while still being "an upper level conspirator" and part of "the inner-circle in this conspiracy."

Valdez signed a plea agreement on May 2, 2018. Valdez had multiple prior convictions. If the government had sought a sentencing enhancement based on all of them, under the law at the time the plea agreement was negotiated, Valdez would have faced a mandatory life sentence. Under the terms of the plea agreement, however, the government agreed to seek a sentencing enhancement under 21 U.S.C. § 851 based on only one of his prior convictions, thereby reducing his sentencing exposure to less than a life sentence. The government also agreed to file a motion under U.S.S.G. § 5K1.1 recognizing Valdez's substantial assistance to the authorities and "asking the Court to impose a sentence below the guideline sentencing range and mandatory minimum sentence of 20 years imprisonment." The agreement acknowledged that "the decision whether, and to what extent to grant [the motion], is solely up to the Court."

Valdez agreed to cooperate in the government's case. And he agreed to waive his right to appeal "if the sentence is a term of imprisonment of 20 years or less."

At the change of plea hearing on May 18, 2018, the district court asked Valdez if he understood that he was waiving his right to appeal the sentence imposed if the sentence was "within or below the guideline range." Valdez replied, "Yes."

B. Sentencing Proceedings

On August 30, 2018, as contemplated in the plea agreement, the government filed a sentence enhancement information under 21 U.S.C. § 851 listing only the one prior felony drug conviction.

After accounting for Valdez's objection to an earlier draft, the final PSR was filed with the district court on November 21, 2018. It calculated a Total Offense Level ("TOL") of 33, not 35 as an earlier draft of the PSR had stated, and a Criminal History Category ("CHC") of II. Based on that, the Guideline Sentencing Range ("GSR") would have been 151 to 181 months' imprisonment. But because of a statutorily-imposed mandatory minimum, the restricted guideline sentence was 240 months', or twenty years', imprisonment.

As contemplated in the plea agreement, on November 27, 2018, the government filed a motion pursuant to U.S.S.G. § 5K1.1 for a downward departure below the twenty-year mandatory minimum. The government recommended a five-level reduction in the offense level and a sentence of 120 months', or 10 years', imprisonment.¹

Before the end of the sentencing proceedings, Congress enacted the First Step Act on December 21, 2018. Section 401(a)(1) of the Act changed the definition of "serious drug felony" such that the drug conviction the government used in support of a sentencing enhancement under 21 U.S.C. § 851 could no longer serve as the basis for a twenty-year mandatory minimum sentence. Instead, Valdez was subject to a ten-year mandatory minimum for all drug offenses involving a kilogram or more of heroin, see 21 U.S.C. § 841(b)(1)(A), before accounting for the impact of the government's § 5K1.1 motion and any downward departure in recognition of Valdez's substantial assistance, see 18 U.S.C. § 3553(e).

Valdez filed a response to the government's § 5K1.1 motion on January 14, 2019. The response explained why, under the First Step Act, the twenty-year mandatory minimum sentence would no longer apply. It acknowledged that the TOL still would be 33, as calculated by the PSR, with a resulting GSR of 151 to 188 months' imprisonment before accounting for any downward departure in recognition of Valdez's substantial assistance.

Valdez's response to the § 5K1.1 motion then described several ways that the government might update its recommended sentence to account for the enactment of the First Step Act. Valdez argued that a sentence of between sixty and ninety-seven months would be appropriate and consistent with the logic of the government's previous recommendation. Ultimately, based on factors described in 18 U.S.C. § 3553(a), Valdez recommended that the district court sentence him to thirty-six months' imprisonment.

Valdez's sentencing hearing occurred several weeks later, on January 18, 2019. First, the parties agreed that the PSR had correctly calculated a TOL of 33, not 35, and a CHC of II, with a corresponding GSR of 151 to 188 months' imprisonment. The parties also agreed with the defense's analysis that the First Step Act applied to Valdez because he had not been sentenced at the time of enactment. Therefore, the prior conviction that was the basis for the sentencing enhancement that had subjected him to the twenty-year minimum was no longer considered a "serious drug offense," and Valdez was subject to the ten-year minimum instead. The parties also agreed that, because the government had filed a § 5K1.1 motion for Valdez's substantial assistance, Valdez was effectively not subject to any mandatory minimum.

The court then asked the government to update, in light of the First Step Act's enactment, the sentencing recommendation it had made in its § 5K1.1 motion. The government continued to recommend 120 months', or ten years', imprisonment, calling the change in law "unanticipated," and representing that had it known about the First Step Act during plea negotiations, it would have structured the plea agreement differently to reach the same recommended sentence. The government argued that ten years remained "fair" because of the nature of Valdez's offense, the nature of his assistance to the government, the expectations of the parties, and the need to avoid an unwarranted sentencing disparity between Valdez and his two brothers, both of whom had been sentenced to twenty years in prison.

Defense counsel renewed the arguments he had made in his response to the government's § 5K1.1 motion, after the First Step Act was enacted. Specifically, he continued to argue that the government should not recommend the same sentence it did before the enactment of the First Step Act, and he described how the government might recommend a sixty- or ninety-seven-month sentence instead while remaining consistent with the logic of its previous recommendation.

The district court rejected the government's 120-month, or ten-year, recommendation. Instead, it applied the five-level reduction the government had originally proposed to the correct offense level of 33 to achieve an adjusted GSR of 87 to 108 months' imprisonment. The defense had proposed this analysis in its response to the government's § 5K1.1 motion as one of several ways...