Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 08-2433

UNITED STATES OF AMERICA,

Appellee,

v.

AMADO DE LA ROSA-RAMOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Selya, Lipez and Howard, Circuit Judges.

Linda Backiel on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper,

Assistant United States Attorney, on brief for appellee. 

February 17, 2010
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Per Curiam. Defendant-appellant Amado De La Rosa-Ramos

pleaded guilty to charges involving his attempted illegal reentry

into the United States. The district court sentenced him to two

concurrent 51-month terms of immurement. On appeal, he challenges

his sentence. We direct a slight modification in the sentence but

otherwise affirm.

The facts, which we glean from the plea colloquy, the

presentence investigation report (PSI Report), and the transcript

of the disposition hearing, are uncomplicated. On March 25, 2008,

Puerto Rico maritime police called the U.S. Border Patrol to a

locus roughly 200 yards off the coast of Parque de Colón. Upon

arrival, the border patrol agents observed a number of persons

jumping from a detained vessel into the surrounding waters. The

agents apprehended the defendant and thirteen other individuals.

In due course, a federal grand jury handed up a two-count

indictment against four persons. The indictment charged the

defendant with plotting to effect his own illegal entry and aiding

and abetting the illegal entry of others, in violation of 8 U.S.C.

§ 1325(a)(1) (count 1), and attempted reentry into the United

States without proper authorization after having been deported

following the commission of an aggravated felony, in violation of

8 U.S.C. § 1326(a)(2), (b)(2) (count 2). The defendant entered a

straight guilty plea to both counts.
 This total offense level resulted from a base offense level 1

of 8, see USSG §2L1.2, plus 16 levels because the defendant's

earlier deportation followed his conviction for a crime of

violence, see id. §2L1.2(b)(1)(A)(ii), less 3 levels for acceptance

of responsibility, see id. §3E1.1.

 At sentencing in the instant case, the parties disagreed 2

about the date of deportation. We need not resolve this dispute as

the exact date is immaterial to the issues presented on appeal.

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A probation officer proceeded to prepare the PSI Report.

Using the November 2007 edition of the guidelines manual, she

grouped the counts of conviction because they arose out of the same

plan, scheme, or course of conduct. See USSG §3D1.2(b). Inasmuch

as count 2 carried the higher total offense level — 21 — the

probation officer used it to calculate the guideline sentencing

range (GSR). See id. §3D1.3(a). 1

To complete this calculation, the probation officer

needed to determine the defendant's criminal history category

(CHC). Because certain details of the defendant's criminal record

are pertinent to an issue on appeal, we note the relevant

particulars.

The first conviction with which we are concerned led to

sentencing by a local Puerto Rico court on November 27, 1995. The

charges were for aggravated assault and related weapons violations.

The Puerto Rico court imposed a two-year prison sentence. The PSI

Report assigned three criminal history points in respect to this

sentence. See id. §4A1.1(a). Following service of this sentence,

the government deported the defendant.2
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The defendant's other brushes with the law arose out of

activities that led to his arrest by the Coast Guard on or about

October 25, 2003. This arrest followed the Coast Guard's seizure

of a wooden yawl off the coast of San Juan. Federal authorities

detained several persons (including the defendant). They

subsequently charged the defendant with illegal reentry into the

United States after having been deported for commission of an

aggravated felony. See 8 U.S.C. § 1326(b)(2).

The defendant entered a guilty plea on July 20, 2004, and

a federal judge sentenced him to 41 months in prison (subsequently

reduced to 30 months) and three years of supervised release. The

PSI Report assigned three criminal history points to this sentence.

See USSG §4A1.1(a).

On March 24, 2004, the defendant (along with other

persons arrested on October 25, 2003) was charged with smuggling

and harboring illegal aliens. As part of a plea bargain, the

government later dropped these charges and, instead, filed an

information that charged the defendant with misprision of a felony.

See 18 U.S.C. § 4. On June 9, 2005, the defendant entered a guilty

plea to this charge. The court sentenced him the same day to

twelve months and one day in prison, to run concurrently with the

unserved portion of his 41-month sentence (described above). The

PSI Report assigned three criminal history points to this sentence.
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See USSG §4A1.1. After his release, the government again deported

the defendant.

In addition to the foregoing, the PSI Report assigned two

points because the defendant committed the offenses of conviction

(that is, the offenses underlying this appeal) while serving a term

of supervised release. See id. §4A1.1(d).

In the aggregate, these allocations produced a total of

eleven criminal history points, which placed the defendant in CHC

V. See id. Ch. 5, Pt. A (sentencing table). As a further data

point, the PSI Report noted that the statutory maximum sentences

for the offenses of conviction were two years for count 1 and

twenty years for count 2.

Neither side filed objections to the PSI Report. See

D.P.R.R. 132(b)(3). At the disposition hearing, however, the

defendant disputed certain dates, see, e.g., supra note 2, and

sought to "clarify" his prior convictions. Despite this

clarification, the sentencing court ruled that the prior

convictions were appropriately scored in the PSI Report. Then, the

court cited a variety of mitigating factors and adjusted the

defendant's total offense level downward by three levels (to 18).

Accepting all the other recommendations contained in the PSI Report

and retaining the defendant's classification in CHC V, the court

computed the GSR at 51-63 months. The government recommended a

sentence at the low end of the GSR. The court obliged, sentencing
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the defendant to two concurrent 51-month terms of imprisonment.

This timely appeal followed.

Before us, the defendant advances two claims of error.

First, he argues that his sentence on count 1 exceeds the statutory

maximum. Second, he argues that the court below erred in

determining his CHC. Since his second claim requires more

analysis, we start there.

The defendant's challenge to his CHC comprises an attack

on two of the district court's intermediate calculations. Because

no part of this attack was adumbrated in the district court, the

government asserts that the defendant has waived these claims of

error. For his part, the appellant concedes that these claims are

unpreserved — he is raising them for the first time on appeal — but

says that they are forfeited, not waived. 

The characterization question is not free from doubt.

See, e.g., United States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st

Cir. 2006) (suggesting, on analogous facts, that claims of

sentencing error were waived). A party waives a right when he

intentionally relinquishes or abandons it. United States v. Olano,

507 U.S. 725, 733 (1993); United States v. Eisom, 585 F.3d 552, 556

(1st Cir. 2009). In contrast, a party who merely fails to make a

timely assertion of a right forfeits that right, but does not waive

it. United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).

The distinction is consequential from the standpoint of possible
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appellate review; "a waived issue ordinarily cannot be resurrected

on appeal, whereas a forfeited issue may be reviewed for plain

error." Id. (citations omitted).

It is not necessary for us to decide this

characterization question here. The merits of the claims in

question are easily dispatched, so it is unnecessary for us to

address the waiver issue head-on. Therefore, we assume, favorably

to the defendant, that what transpired here was simply a

forfeiture. This means, of course, that we may review the claims,

but only for plain error. Under that standard, the defendant must

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." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001).

The defendant assigns error to the lower court's

compilation of his criminal history score. The nub of his

complaint is that the court counted the two sentences arising out

of the October 2003 incident separately. In his view, the

underlying charges were "related cases" and, thus, should have been

treated as a single unit (carrying fewer criminal history points).

This argument fails. Without objection, both the

probation officer and the district court used the November 2007

edition of the guidelines for all purposes relevant to sentencing.
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Even on appeal, no one has suggested that some other edition of the

guidelines should have been employed.

In all events, the November 2007 edition of the

guidelines plainly applies here. Unless doing so would cause an ex

post facto problem, a sentencing court should use the version of

the guidelines in effect on the date of sentencing. See 18 U.S.C.

§ 3553(a)(4)(A)(ii); USSG §1B1.11(a); United States v. Silva, 554

F.3d 13, 22 (1st Cir. 2009); United States v. Harotunian, 920 F.2d

1040, 1041-42 (1st Cir. 1990). The district court sentenced the

defendant on September 26, 2008, for offenses that arose out of

events that occurred on March 25, 2008. The November 2007 edition

of the guidelines was in force on both dates. A fortiori, using

that version of the guidelines did not pose an ex post facto

problem. 

These guidelines instruct that when multiple prior

sentences are in play, separate sentences sometimes may be counted

as a unit for the purpose of calculating a defendant's criminal

history score. See USSG §4A1.2(a). But in that regard, the

guidelines make no reference to a "related cases" standard.

Instead, they provide in pertinent part that: 

. . . prior sentences are counted separately

unless (A) the sentences resulted from

offenses contained in the same charging

instrument; or (B) the sentences were imposed

on the same day. Count any prior sentence

covered by (A) or (B) as a single sentence.
 A "related cases" provision was contained in the immediately 3

preceding edition of the guidelines: whether convictions were

counted separately turned, in some circumstances, on whether the

cases were "related." See USSG §4A1.2 (2006). But this provision

was deleted in 2007, see USSG Supp. to App. C, amend. 709 (2007),

and it has no bearing here. 

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USSG §4A1.2(a)(2). Under this standard, whether or not the prior

convictions are "related" is irrelevant.3

In this case, the record makes manifest that the

challenged convictions were not for offenses described in the same

charging document, nor were the sentences for them imposed on the

same day. Thus, the district court correctly counted the two

convictions as separate offenses for the purpose of tabulating the

defendant's criminal history score.

The defendant has a fallback position. He argues that

the district court blundered by awarding three criminal history

points for the misprision of felony sentence and that, therefore,

the sentence on count 2 must be vacated. His premise is correct,

but the conclusion that he reaches is not.

The district court erred in assigning three criminal

history points to this sentence. The sentence for the misprision

of felony conviction was for one year and one day. Thus, only two

points should have been assigned for that sentence. See USSG

§4A1.1(a) (requiring three criminal history points be added for

sentences "exceeding one year and one month"); id. §4A1.1(b)
 Although the PSI Report described the maximum term of 4

imprisonment as two years for the section 1325 offense, that

maximum is only available for a subsequent section 1325 conviction.

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(requiring two criminal history points be added for sentences of at

least 60 days).

Although the defendant is correct in insisting that the

court should have assigned two, not three, criminal history points

for this sentence, the error was harmless. Subtracting one

criminal history point would not have shifted the defendant into a

different CHC and, thus, would not have changed the GSR.

Consequently, the counting error did not impugn the defendant's

substantial rights. See Fed. R. Crim. P. 52(a); United States v.

Jimenez, 512 F.3d 1, 8 (1st Cir. 2007). It follows that this claim

cannot survive scrutiny under the third prong of the test for plain

error. The sentence imposed on count 2 must stand.

This leaves the defendant's sentence on count 1. He

maintains that this sentence exceeds the statutory maximum. We

agree.

The facts are these. With respect to count 1, the

defendant pleaded guilty to violating 8 U.S.C. § 1325. The

district court sentenced him to 51 months' imprisonment. The

conviction, however, is for a first offense and, thus, is subject

to a six-month maximum term of imprisonment. See 8 U.S.C. 4

§ 1325(a). Thus, the sentence imposed on count 1 was in excess of

the statutory maximum. We deem that error plain, and find the
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remaining elements of the plain error test satisfied. See, e.g.,

United States v. Hilario-Hilario, 529 F.3d 65, 76 (1st Cir. 2008).

This does not mean, however, that resentencing is

required. The reduction of a sentence to conform to a statutory

maximum ordinarily may be accomplished without a new sentencing

hearing. See, e.g., United States v. Barnes, 244 F.3d 172, 178

(1st Cir. 2001). In this case, an instruction to the sentencing

court is all that is needed to repair the defect.

We need go no further. For the reasons elucidated above,

we uphold the sentence on count 2. However, we remand count 1,

with directions to the district court to amend that sentence to a

sentence of six months' imprisonment, to run concurrently with the

sentence imposed on count 2. As amended, the sentence on count 1

is also affirmed.

So Ordered.