United States Court of Appeals

For the First Circuit

No. 08-2463

UNITED STATES OF AMERICA,

Appellee,

v.

ONEIDA CARRASCO-DE-JESÚS, a/k/a BRENDA RÍOS-GONZÁLEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

 Selya, Lipez and Howard, Circuit Judges.

Mariángela Tirado-Váles on brief for appellant.

Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Chief, Appellate Division, and Julia M. Meconiates,

Assistant United States Attorney, on brief for appellee. 

December 11, 2009
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SELYA, Circuit Judge. Defendant-appellant Oneida

Carrasco-de-Jesús, also known as Brenda Ríos-González, attacks her

sentence as both procedurally flawed and substantively

unreasonable. Concluding, as we do, that her attack lacks force,

we affirm.

I. BACKGROUND

A federal grand jury in the District of Puerto Rico

charged the appellant with participation in a conspiracy to issue

and use counterfeit checks. See 18 U.S.C. §§ 371, 513. After some

preliminary skirmishing, not relevant here, the appellant pleaded

guilty pursuant to a negotiated plea agreement (the Agreement). We

draw the background facts from the Agreement, the transcripts of

the change-of-plea and sentencing hearings, and the amended

presentence investigation report (PSI Report). See United States

v. Calderón-Pacheco, 564 F.3d 55, 56 (1st Cir. 2009); United States

v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

Given the circumscribed nature of the issues on appeal,

we can succinctly summarize the events leading up to the

indictment. For roughly a year, the appellant and two cohorts

conspired to make counterfeit checks purporting to originate with

banks (specifically, Banco Popular and FirstBank). The

coconspirators passed these bogus checks at various mercantile

establishments in Puerto Rico. 
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In general, the scheme operated along the following

lines. A coconspirator, Josué Francisco-Serrano Nieves, would

produce counterfeit checks bearing the actual name and routing

number of one of the banks along with a fictitious account number.

Another coconspirator (either the appellant or Heilmary Rodríguez)

would then visit a retail emporium (e.g., Sears, Office Max, Pep

Boys), purchase merchandise, and pay with a home-made check.

The coconspirators acquired goods worth many thousands of

dollars before the authorities cracked the case. A federal

indictment was returned while the appellant was in custody in a

Puerto Rican penitentiary, and the district court issued a writ of

habeas corpus ad prosequendum to secure her appearance in the

district court. The appellant's guilty plea followed apace.

This brings us to the Agreement, which stipulated a base

offense level (BOL) of six for the offense of conviction (the

counterfeiting conspiracy). See USSG §2B1.1(a)(2). The government

agreed to recommend a sentence at the lower end of the applicable

guideline sentencing range (GSR). To assist in establishing that

range, the district court directed the probation department to

prepare a PSI Report. 

Determining that the amount of loss attributable to the

conspiracy exceeded $30,000, the probation officer added six more

levels to the stipulated BOL. See id. §2B1.1(b)(1)(D). Because the

appellant accepted responsibility for the offense of conviction, she
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received a two-level credit. See id. §3E1.1(a). Her adjusted

offense level was, therefore, ten.

The appellant had only two countable criminal history

points accruing directly from past offenses. At the time of federal

sentencing, however, she had begun to serve two-year concurrent

Puerto Rico sentences for having (i) passed a fraudulent check in

the sum of $101.60 and (ii) furnished false information to public

officials in order to procure an electoral card that she then used

to facilitate the check-passing crime. These offenses did not

impact her criminal history score because the probation officer

classified them as relevant conduct with respect to the federal

offense. See id. §1B1.3; see also United States v. Eisom, ___ F.3d

___, ___ (1st Cir. 2009) [2009 WL 3669746, at *4] (explicating

relevant conduct concept). Nevertheless, two more criminal history

points were added because the appellant was under a term of

probation when she committed the federal offense. USSG §4A1.1(d).

The net result of these computations was the appellant's

placement in criminal history category III. Combined with her

adjusted offense level (ten), this placement yielded a GSR of ten

to sixteen months.

The appellant was detained pursuant to the previously

mentioned writ of habeas corpus from February 8, 2008, until after

sentencing. The parties agree that this period of detention counted
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toward her fulfillment of her Puerto Rico sentences but did not

count toward her sentence for the offense of conviction.

The district court conducted a disposition hearing on

October 14, 2008. The appellant beseeched the court to impose a

ten-month prison term, concurrent with the undischarged portion of

her Puerto Rico sentences. The court expressed concern about a

concurrent sentence, noting that the Puerto Rico offenses involved

a particularly serious matter: electoral fraud. The court worried

that yielding to the appellant's importunings would reduce the

earlier sentences to a "slap on the wrist." In addition, the court

commented that the federal sentencing guidelines attached a similar

degree of seriousness to the offense of conviction. 

Citing USSG §5G1.3(b), discussed infra, the appellant

countered that the court was under a "mandate" to impose a

concurrent sentence. The government suggested that the matter was

within the court's discretion. The court concluded that it had

discretion to impose a concurrent sentence, but found that the

totality of the circumstances militated against doing so. The court

then imposed an incarcerative sentence of twelve months and one day,

to run consecutively to the undischarged portion of the appellant's

Puerto Rico sentences. This timely appeal followed.

II. DISCUSSION 

Three issues warrant discussion. The first involves the

effect of a waiver-of-appeal provision contained in the Agreement.
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The second involves the sentencing court's failure to fashion a

concurrent sentence. The third involves the reasonableness of the

sentence ultimately imposed. We address these issues sequentially.

A. Waiver of Appeal.

The Agreement contains, inter alia, the following

paragraph: 

The defendant hereby agrees that if this

Honorable Court accepts this plea agreement and

sentences her according to its terms,

conditions, and recommendation, the defendant

waives and surrenders her right to appeal the

judgment and sentence in this case.

The appellant argued in her opening brief that this provision was

a nullity because the lower court neither sentenced her in

accordance with the Agreement nor used the concurrent sentence

mechanism. While this argument may not be foolproof — the Agreement

left open the criminal history category calculation; that

calculation, combined with the stipulated offense level, yielded a

GSR of ten to sixteen months; and the sentence imposed is arguably

at the "lower end" of that range — we need not delve into it. By

eschewing any reliance on the waiver-of-appeal provision, the

government has rendered that analysis superfluous. 

The intentional relinquishment of a known right results

in a waiver. Eisom, ___ F.3d at ___ [2009 WL 3669746, at *2]

(citing United States v. Olano, 507 U.S. 725, 733 (1993)). In

criminal cases, waiver doctrine is commonly invoked to bar a

defendant's assertion of a claim. See, e.g., id. Nevertheless,
 Of course, we have discretion to overlook waiver by the 1

government in a criminal case when circumstances justify us in

doing so. See United States v. Borrero-Acevedo, 533 F.3d 11, 15

n.3 (1st Cir. 2008); United States v. Rose, 104 F.3d 1408, 1414

(1st Cir. 1997); see also United States v. Moran, 393 F.3d 1, 11

(1st Cir. 2004) (acknowledging this discretion, but declining to

exercise it). There is nothing in the record of this case that

commends such a practice to us.

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what is sauce for a defendant's goose is most often sauce for the

government's gander. In line with that precept, waiver doctrine has

been applied against the government in criminal cases, where

appropriate. See, e.g., United States v. Moran, 393 F.3d 1, 11 1

(1st Cir. 2004).

Where, as here, the government's relinquishment of a known

right relates to a waiver-of-appeal provision in a plea agreement,

there is usually little reason to disregard that election. Cf.

United States v. Guadelupe-Rivera, 501 F.3d 17, 20 n.3 (1st Cir.

2007) (accepting the government's concession at oral argument anent

the unenforceability of a particular waiver-of-appeal provision).

Here, the government affirmatively disclaimed the waiverof-appeal provision, see Appellee's Br. at 6 n.3, and we see no

justification for proceeding sua sponte to inquire into its

preclusive effect. 

B. Procedural Reasonableness.

The appellant asseverates that the challenged sentence is

procedurally unreasonable because the sentencing court failed
 The Court listed several examples of procedural error, such 2

as "failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence — including an explanation for any deviation from the

Guidelines range." Gall, 552 U.S. at 51.

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properly to apply USSG §5G1.3(b). Before considering the substance

of this asseveration, we comment upon the standard of review. 

In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court effected a sea change in the law of federal

sentencing. Booker made it pellucid that the sentencing guidelines

were advisory and that appellate courts should review sentences for

reasonableness. Id. at 245, 260-61. In a subsequent case, Gall v.

United States, 552 U.S. 38 (2007), the Court clarified that

reasonableness review is functionally equivalent to review for abuse

of discretion. Id. at 51. The Justices mapped out a bifurcated

process for assessing the reasonableness of a sentence: an inquiring

court first should determine whether the sentencing court committed

any procedural error and, second, should evaluate the sentence's 2

substantive reasonableness. Id.

The appellant's section 5G1.3(b) claim is a claim of

procedural unreasonableness. See United States v. Cruz-Rodríguez,

541 F.3d 19, 35 (1st Cir. 2008). At a high level of generality, it

may be said that rulings challenged as procedurally unreasonable are

subject to review for abuse of discretion. See United States v.

Martin, 520 F.3d 87, 92 (1st Cir. 2008). But abuse of discretion
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is not a monolithic standard. Within its margins, embedded issues

may receive attention under more narrowly focused standards. Thus,

embedded questions of law engender de novo review and embedded

findings of fact engender clear-error review. See Nat'l Ass'n of

Chain Drug Stores v. New Eng. Carps. Health Benefits Fund, 582 F.3d

30, 45 (1st Cir. 2009); see also United States v. Snyder, 136 F.3d

65, 67 (1st Cir. 1998) (explaining that review of legal error is

non-deferential and that a district court perforce abuses its

discretion when it commits a material error of law). Because the

claim of error now before us rests upon the interpretation of a

guideline provision, that claim engenders de novo review. See

United States v. Vasco, 564 F.3d 12, 22 (1st Cir. 2009); United

States v. Rivera, 448 F.3d 82, 84 (1st Cir. 2006); see also United

States v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005) (holding that

Booker did not alter the standard of review for claims that require

a determination of the meaning of a sentencing guideline).

Against this backdrop, we turn to the appellant's claim

that USSG §5G1.3(b) required the court below to impose a concurrent

sentence.

A sentencing court's choice between a consecutive or a

concurrent sentence with respect to a defendant who is subject to

an undischarged state-court term of imprisonment is normally

discretionary. See 18 U.S.C. § 3584(a). But when exercising its

discretion, the sentencing court is under a direction to consider
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the factors enumerated in 18 U.S.C. § 3553(a), including any

applicable sentencing guidelines or policy statements. Id.

§ 3584(b). 

One such guideline is USSG §5G1.3(b), which provides, with

various exceptions, for a concurrent or partially concurrent

sentence when there is a previously imposed but undischarged term

of imprisonment that has "resulted from another offense that is

relevant conduct to the instant offense of conviction" if the

relevant conduct offense "was the basis for an increase in the

offense level" for the offense of conviction.

Section 5G1.3(b) sets up a tightly imbricated framework,

and this case does not require us to sketch its complete

architecture. For present purposes, it suffices to say that, in

order to gain its benefit, a defendant must prove that she satisfies

each and every element of the guideline. See United States v. Lino,

493 F.3d 41, 44 (1st Cir. 2007). One such element is whether the

relevant conduct offense — that is, the offense underpinning the

undischarged term of imprisonment — was the basis for an increase

in the offense level for the offense of conviction. See id.; United

States v. Rouse, 362 F.3d 256, 261 (4th Cir. 2004).

As said, a bogus check for $101.60 underpinned in part the

convictions on which the appellant's earlier Puerto Rico sentences

were based. The appellant contends that this check was considered

as an overt act of the charged conspiracy and formed part of the
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basis for the six-level increase in her offense level. See USSG

§2B1.1(b)(1)(D) (providing for such an increase if the loss

attributable to the offense of conviction and all relevant conduct

exceeds $30,000). 

The factual predicate on which this contention depends is

disputed. The government maintains that the check for $101.60 was

not used at all in calculating the amount of loss (and, thus, in

setting the adjusted offense level). To prove this point, the

government attached to its opening brief in this court a copy of the

ledger purportedly used in preparing the relevant section of the PSI

Report. The appellant objects to this proffer. That objection is

well-taken. Because the ledger was not made part of the record in

the court below, what we wrote in United States v. Kobrosky, 711

F.2d 449 (1st Cir. 1983), is dispositive here:

We are an appellate tribunal, not a nisi prius

court; evidentiary matters not first presented

to the district court are, as the greenest of

counsel should know, not properly before us.

Id. at 457. The government, in a supplementary brief, now concedes

this point.

Even with the exclusion of the ledger, the appellant is

still in deep water. A defendant bears the burden of proving the

applicability of a guideline provision that will ameliorate her

sentence. See United States v. McLaughlin, 378 F.3d 35, 39 (1st

Cir. 2004); United States v. Sanchez, 354 F.3d 70, 74 (1st Cir.

2004); United States v. Mangos, 134 F.3d 460, 466 (1st Cir. 1998).
 To be sure, the $101.60 check is mentioned once in the 3

amended PSI Report — but only as an overt act of the conspiracy.

It is not mentioned in connection with the offense level

computation. 

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In this instance, that burden requires the appellant to show, among

other things, that the check for $101.60 was used in calculating her

adjusted offense level. The record is utterly silent on this

subject; there is no hint that the $101.60 check was used to 3

enhance the appellant's offense level. A lack of evidence on a

critical point is an insurmountable obstacle for the party who has

the burden of proof on that point. Consequently, the silent record,

in itself, defeats the appellant's claim.

Even had the $101.60 check been used in computing the

amount of loss, the appellant's claim would not succeed. According

to unrebutted arithmetic in the PSI Report, the aggregate loss in

this case exceeded $50,000. The threshold for the six-level offense

level increase was $30,000. Thus, the check for $101.60, even if

counted, could not properly be said to have formed the basis for an

offense level "increase" within the meaning of USSG §5G1.3(b). We

explain briefly.

The term "basis" denotes a foundation or support on which

something else rests. See Webster's Third New Int'l Dict. 182

(2002) (defining "basis" as "the bottom of anything considered as

a foundation for the parts above"); Black's Law Dict. 171 (9th ed.

2009) (defining "basis" as "an underlying condition"). Consistent
 In United States v. Caraballo, 200 F.3d 20, 26 n.9 (1st Cir. 4

1999), we reached a somewhat different decision, but we did so

under a different version of the guideline. See USSG §5G1.3(b)

(1998). That earlier version was modified by the Sentencing

Commission's promulgation in 2003 of Amendment 660. That amendment

clarified the guideline's meaning and made Caraballo something of

an anachronism. See Lino, 493 F.3d at 45. It is the clarified

version of the guideline with which we are concerned.

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with this definition, the Sentencing Commission itself appears to

regard the "basis" language as causal. See USSG §5G1.3(b), cmt.

n.2(A) (explaining that section 5G1.3(b) applies in cases in which

"the prior offense . . . has resulted in an increase in the . . .

offense level for the instant offense" (emphasis supplied)). Courts

have taken the same approach. See, e.g., Rouse, 362 F.3d at 261

(contrasting the plain language of the current guideline with the

fact that "[p]rior to the amendment, a prior offense could be 'fully

taken into account' even if inclusion of the offense as relevant

conduct did not effect a change in the defendant's offense level").

In short, the text of the guideline is inconsistent with an

interpretation, such as that urged by the appellant, under which an

incremental loss that would not have affected the offense level

could nonetheless be regarded as forming the "basis" for an increase

in that level. We fail to see how an item of loss that has no 4

effect on the offense level can serve as the "foundation" of that

level. 

We hold, therefore, that USSG §5G1.3(b) did not require

the district court to impose a concurrent sentence in this case. 
 These factors include: 5

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) the

need for the sentence imposed — (A) to reflect the

seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense; (B)

to afford adequate deterrence to criminal conduct; (C) to

protect the public from further crimes of the defendant;

. . . (6) the need to avoid unwarranted sentence

disparities among defendants with similar records . . .;

and (7) the need to provide restitution to any victims of

the offense.

18 U.S.C. § 3553(a).

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The appellant's claim of procedural unreasonableness has

another dimension. She asserts that the sentencing court erred in

failing to consider the factors made relevant to the sentencing

determination by 18 U.S.C. § 3553(a). Assuming, without deciding, 5

that this claim of error has been preserved, we find it groundless.

The court's statement of its reasons for its choice of a

sentence plainly takes into account the section 3553(a) factors.

For example, the court explicitly considered the appellant's

troubled childhood, difficult family circumstances, and other

personal characteristics. In the last analysis, however, the court

attached more weight to the appellant's extensive criminal history,

the seriousness of her past and present crimes, her failure to

capitalize on previous opportunities for rehabilitation, the need

for deterrence, and society's interest in promoting respect for the

law. The court also appears to have found that the appellant's nonfederal crimes were distinct from her federal crime. 
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A criminal defendant is entitled to a weighing of the

section 3553(a) factors that are relevant to her case, not to a

particular result. Here, the sentencing court's careful

consideration of the statutory factors and its explanation of its

reasoning satisfy the obligations imposed by section 3553(a).

The bottom line, then, is that the sentencing court had

discretion to impose either a consecutive or a concurrent sentence.

See USSG §5G1.3(c); see also USSG §5G1.3, cmt. (backg'd.) (2007).

The court studied that choice and, for aught that appears, weighed

all the appropriate factors. Its declination to impose a concurrent

sentence was a quintessential judgment call, free from procedural

error.

C. Substantive Reasonableness.

The appellant's final claim of error challenges the

substantive reasonableness of the district court's decision to run

the sentence consecutively. In particular, she posits that the

sentence violates the parsimony principle of 18 U.S.C. § 3553(a),

which states that the sentence imposed should be "sufficient, but

not greater than necessary." In her view, the "appropriate total

punishment" for her aggregate convictions (Puerto Rico and federal)

should have been no more than twelve months and one day. The only

way for the district court to effectuate that modest level of

punishment would have been to make her sentence concurrent with the

undischarged portion of her Puerto Rico sentences. 
 The appellant alludes to the unpublished decision in United 6

States v. Díaz-Fontánez, 317 F. App'x 9, 10 (1st Cir. 2008), to

support her argument that a concurrent sentence would have achieved

the appropriate total punishment. That allusion compares plums

with pomegranates. In Díaz-Fontánez the government had stipulated

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We need not tarry. The appellant's argument misreads the

district court's comments at the disposition hearing. The court did

not declare that twelve months and one day was a sufficient period

of immurement for all of the crimes but, rather, determined that the

offense of conviction alone warranted incarceration of that

duration.

Second — and dispositively — a sentencing court's ultimate

responsibility is to articulate a plausible rationale and arrive at

a sensible result. See Martin, 520 F.3d at 91. Here, the court

voiced its concern that the GSR understated the severity of the

offense of conviction and pointed out that if it were to impose a

concurrent sentence, the appellant would in effect get a free ride

(or nearly a free ride) with respect to the offense of conviction;

that is, she would serve no time for that offense beyond what she

was bound in any event to serve for the Puerto Rico convictions.

Given all of the circumstances, the court determined that the case

warranted a consecutive sentence of twelve months and one day. This

sentence, plausibly explained, fell comfortably within the universe

of reasonable alternatives available to the sentencing court. No

more is exigible. We hold, without serious question, that the

challenged sentence is not substantively unreasonable. 

6
to the fact that the conduct underlying the prior state conviction

was the basis for an increase in the offense level referable to the

federal offense. That is quite different from the situation here.

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III. CONCLUSION

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

we conclude that the district court did not commit an abuse of

discretion and, therefore, uphold the challenged sentence.

Affirmed.