United States Court of Appeals

For the First Circuit

No. 02-1879

UNITED STATES OF AMERICA,

Appellee,

v.

ELMER C. RODRIGUEZ-CASTILLO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Douglas J. Beaton on brief for appellant.

H.S. Garcia, United States Attorney, Sonia I. Torres, Chief,

Criminal Division, and Aramis G. Ríos, Assistant United States

Attorney, on brief for appellee.

November 17, 2003
1Effective December 1, 2002, a new rule, redesignated as Rule

16(a)(1)(D), replaced former Rule 16(a)(1)(B). The substance of

the rule remains the same, but the wording has changed slightly

(e.g., the new version states that "the government must furnish"

certain information whereas the original version states that "the

government shall furnish" such information). Since the events in

this case transpired before the effective date of the revision, we

refer throughout to the original version.

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SELYA, Circuit Judge. In this appeal, defendantappellant Elmer C. Rodriguez-Castillo (Rodriguez) raises questions

concerning the operation of former Rule 16(a)(1)(B) of the Federal

Rules of Criminal Procedure1 and the imposition of his sentence.

Concluding that his arguments lack merit, we affirm the judgment

below.

We glean the relevant facts from the change-of-plea

colloquy, the presentence investigation report (PSI Report), and

the transcript of the disposition hearing. See United States v.

Brewster, 127 F.3d 22, 23 (1st Cir. 1997); United States v. Dietz,

950 F.2d 50, 51 (1st Cir. 1991). In all events, the facts are

essentially uncontradicted.

On December 8, 1998, a federal grand jury indicted

Rodriguez and three compatriots for various drug-trafficking

offenses. Rodriguez initially asserted his innocence. Early in

the case, the government supplied him with a summary of his prior

criminal record as then known to it. The government's letter of

transmittal left no doubt that the criminal history was incomplete.

The convictions listed in this hypoplastic summary, without more,
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would have placed Rodriguez into criminal history category (CHC) II

for sentencing purposes.

Despite the plainly incomplete nature of the government's

criminal history submission, Rodriguez commenced plea negotiations.

He subsequently entered into a plea agreement (the Agreement).

Under the Agreement, the government committed itself to dismiss

certain charges and embrace a reduced drug-quantity determination

in exchange for Rodriguez's plea of guilty to a single count of

illegal importation of cocaine in violation of 21 U.S.C. § 952(a).

On March 21, 2002, Rodriguez entered a guilty plea to the

importation count and the district court commissioned the

preparation of the PSI Report. When compiled, the report included

a more accurate description of Rodriguez's criminal past. In

particular, it identified a 1989 felony conviction for aggravated

unlawful appropriation of property in violation of 33 P.R. Laws

Ann. § 4272 that had not been included in the government's earlier

summary. That additional conviction pushed Rodriguez into CHC III.

As we shall see, this category change had a discernible effect on

the guideline sentencing range (GSR).

The drug-quantity compromise contained in the Agreement

fixed the weight of the cocaine attributable to Rodriguez at 149

kilograms, and, thus, lowered his base offense level under the

sentencing guidelines to 36. Rodriguez was entitled to a threelevel credit for timely acceptance of responsibility and a two-
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level reduction reflecting his minor role in the offense of

conviction. See USSG §§3E1.1, 3B1.2 (2000). Had he remained in

CHC II, his GSR would have been 121-151 months. The switch to CHC

III increased his GSR to 135-168 months.

At the disposition hearing, the district court sentenced

Rodriguez at the nadir of the applicable GSR, ordering him to serve

an incarcerative term of 135 months. This timely appeal followed.

Rodriguez first complains that, during the pre-plea

negotiations, the government failed to comply with the strictures

of former Rule 16(a)(1)(B) of the Federal Rules of Criminal

Procedure. Although one might think that a defendant would know

his own criminal history, the rule mandates that, "upon request by

the defendant, the government shall furnish to the defendant such

copy of the defendant's prior criminal record, if any, as is within

the possession, custody, or control of the government, the

existence of which is known, or by the exercise of due diligence

may become known, to the attorney for the government." Id. This

language is mandatory, and courts have not hesitated to compel the

government to effect such production. See, e.g., United States v.

McDaniel, 428 F. Supp. 1226, 1228 (D. Okla. 1977).

Here, Rodriguez made a timely request for his criminal

history. The government responded with a palpably incomplete

summary. The record is murky as to whether the government's

partial response reflected the exercise of due diligence. The
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record is clear, however, that Rodriguez was not misled. The

government informed him that its proffer was incomplete, stating in

its transmittal letter that it "had been informed that [he] had

previously been convicted of a variety of felony offenses" and that

it would "supplement [its] response when additional information is

received."

The next step was up to Rodriguez. He could have awaited

an encyclopedic response or moved to compel one. He chose neither

course. Instead, he pursued plea negotiations, struck a final

bargain, and changed his plea. In so doing, Rodriguez waived his

right to complain about the government's failure to effectuate full

and complete compliance with former Rule 16(a)(1)(B). We explain

briefly.

A defendant who subscribes an unconditional guilty plea

is deemed to have waived virtually all claims arising out of

garden-variety errors that may have antedated the plea. See United

States v. Cordero, 42 F.3d 697, 698-99 (1st Cir. 1994) (collecting

cases). Although there is an exception to this principle, see,

e.g., id. at 699 (noting that jurisdictional issues are not

waived), Rodriguez's case does not fit within its confines. He

knowingly entered an unconditional guilty plea; advised the

district court during the change-of-plea colloquy that he

understood that his guilty plea "waiv[ed] [his] right to a trial

and all the other rights" associated therewith; and made no claim,
2We emphasize the unconditional nature of the plea because a

defendant may tender a conditional guilty plea and still preserve

antecedent claims of error. See Fed. R. Crim. P. 11(a)(2); see

also United States v. Caraballo-Cruz, 52 F.3d 390, 392 (1st Cir.

1995) (discussing effect of conditional plea). Rodriguez did not

avail himself of this option.

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then or now, that the sentencing court lacked authority to hear and

determine his case.2

To be sure, the pre-plea colloquy between the court and

defense counsel was less than a model of clarity, and that colloquy

may well have given Rodriguez hope that his CHC would remain at II.

But such an interpretation would be unreasonable in light of the

government's up-front notice of the distinct possibility that

additional information about prior convictions might surface. Hope

may, as the aphorist would have it, spring eternal, but the

frustration of an expectation founded on hope alone, unanchored in

objective reasonableness, is not a cognizable basis for relief on

appeal.

That ends this phase of the matter. An unconditional

guilty plea waives any and all independent non-jurisdictional

claims arising out of alleged errors antedating the plea. Thus,

Rodriguez waived his right to insist upon compliance with the

provisions of former Rule 16(a)(1)(B) by his decision to plead

guilty unconditionally without first having obtained, by a motion

to compel or otherwise, his complete criminal record. He cannot

now be heard to complain about the government's purported lapse.
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Rodriguez's remaining assignment of error need not occupy

us for long. He strives to persuade us that the district court

erred in not departing downward from the GSR on the ground that his

criminal history score (which placed him in CHC III)

overrepresented his criminal past. We are not convinced.

Ordinarily, a district court's discretionary decision not

to depart from the GSR is unappealable. See United States v.

Pierro, 32 F.3d 611, 619 (1st Cir. 1994); United States v. JimenezOtero, 898 F.2d 813, 815 (1st Cir. 1990). There are, however, a

few isthmian exceptions to this rule. One exception springs into

play when a sentencing court's decision not to depart from the GSR

results from a misperception of its own authority. See Pierro, 32

F.3d at 619 (explaining that "appellate jurisdiction may attach if

it appears that the failure to depart stemmed from the sentencing

court's mistaken impression that it lacked the legal authority to

deviate from the guideline range or, relatedly, from the court's

misapprehension of the rules governing departures") (quoting United

States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994)). The basis

for the exception is that the sentencing court's determination that

it lacked departure authority is not an exercise of discretion,

but, rather, a legal judgment (and, thus, appealable as of right).

See 18 U.S.C. § 3742(a)(2); see also Jimenez-Otero, 898 F.2d at

814.
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Rodriguez relies upon this exception. He notes that the

sentencing court commented, in colloquy, that it saw "no way" to go

under the low end of the GSR obtained by the use of CHC III.

Rodriguez suggests that this remark evinces the court's

misperception that it lacked the power to depart.

This suggestion rests on a porous foundation. It takes

a bit of dialogue completely out of context. Rodriguez never made

a request for a downward departure at the disposition hearing, and

the court's comment did not refer to that possibility at all.

Rather, the quoted statement was made in connection with the

court's determination as to which CHC obtained (and, accordingly,

which GSR applied). Consequently, the "lack of authority"

exception is plainly inapplicable here.

As a fallback, Rodriguez argues that he made the

"functional equivalent" of a departure request. That argument

fails. In the first place, the transcript of the disposition

hearing reveals that nothing remotely resembling a departure

request was made. The argument is, therefore, groundless. In the

second place, the argument, even if well-founded, would sink under

the weight of the aforementioned jurisdictional bar. See Pierro,

32 F.3d at 619.

Rodriguez next asseverates that even in the absence of a

departure request, the district court should have departed sua

sponte. His starting point is uncontroversial: it cannot be
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gainsaid that a sentencing court has the authority to depart on its

own volition. See, e.g., USSG §4A1.3; see generally United States

v. Burns, 501 U.S. 129, 138 (1991) (describing procedure to be

employed when district court essays a sua sponte departure under

USSG §5K2.0). Nevertheless, the idea that a sentencing court's

failure to depart sua sponte creates an appealable issue is a novel

one. We find it unsurprising that Rodriguez cites to no case law

supporting the notion. After all the decision to depart is

typically an exercise of discretion and, absent a focused request

by one of the parties, it would be surpassingly difficult to hold

that the sentencing court abused its discretion in not departing.

Cf. United States v. Reveron Martinez, 836 F.2d 684, 687 (1st Cir.

1988) (holding that a district court has no duty sua sponte to

consider a change of venue in a criminal case).

From a conceptual standpoint, Rodriguez's asseveration is

also unconvincing. Its chief flaw is that it runs contrary to our

usual rule for preserving claims of error. Because the departure

issue was not raised in the district court, analogous precedents

suggest that we should simply hold it unpreserved for appeal. See

Malave v. Carney Hosp., 170 F.3d 217, 222 (1st Cir. 1999)

(discussing the "bedrock rule of appellate practice that . . .

matters not raised in the trial court cannot be hawked for the

first time on appeal"); see also United States v. LaGuardia, 902

F.2d 1010, 1012-13 (1st Cir. 1990) (stating, in a case where a
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departure had not been requested below, that the "usual praxis"

would be "to ignore [the issue] on appeal").

We are aware that one respected court has granted plain

error review in an instance in which a defendant failed to preserve

a departure argument for appeal. See United States v. Draffin, 286

F.3d 606, 609 (D.C. Cir. 2002). We need not decide today the

correctness of that approach. In the best of circumstances, "[t]he

plain error hurdle is high." United States v. Hunnewell, 891 F.2d

955, 956 (1st Cir. 1989). To vault that hurdle, an appellant must

make a fourfold showing: "(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). This case

stumbles over each of the four elements.

The short of it is that Rodriguez's argument for a

departure is not very strong. The facts may not even be sufficient

to support a discretionary departure; they surely are not

sufficient to mandate one. We discern no error (let alone any

obvious error) in the sentencing court's failure to depart

downward. Finally, Rodriguez points to nothing that suggests that

a downward departure is needed either to forestall a miscarriage of

justice or to restore public confidence in the criminal justice

system. We conclude, therefore, that Rodriguez's belated quest for
3This conclusion reinforces the Draffin court's intuition that

"[a]s a practical matter denying review of the failure to depart

sua sponte and reviewing it for plain error will ordinarily yield

the same result: the sentence will be upheld." 286 F.3d at 609-

10.

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a departure does not come close to satisfying the criteria

established for plain error review.3 Compare United States v.

Belk, 346 F.3d 305, ___ (2d Cir. 2003) [No. 02-1636, slip op. at

14], in which the court wrote that "[t]o the extent that plain

error forfeiture analysis under Fed. R. Crim. P. 52(b) extends to

a district court's failure to depart downwardly," it found "no

plain error in the District Court's failure sua sponte to consider

and grant a vertical downward departure."

We need go no further. We hold that (i) Rodriguez's

guilty plea effectively foreclosed his right to complain about any

shortfall in the government's compliance with the strictures of

former Rule 16(a)(1)(B), and (ii) his search for a downward

departure is doomed by his failure to ask the sentencing court for

one. For the sake of completeness, we add that even if the lower

court's failure to depart sua sponte is reviewable for plain error

— a matter on which we take no view — Rodriguez's appeal would

languish.

Affirmed.