# U nit edSta tes C ou rt o f A pp eal s For t h e Firs t C ircu it

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 Pére z-Sosa, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

December 11, 2009-2- 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 Pue r t o R ico 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 backgr o u n d 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 a n dFirstBank). The coconspirators passed these bogus che c k s at various mercantile establishments in Puerto Rico.-3- In gen e ral, the scheme operated along the following lines. A c oconspirator, Josué Francisco-Serrano Nieves, would produce counterfeit checks bearing t h e 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 in d i c t m e n t w a s r e t u r n e d w h i l e t h e a p p e l l a n t w a s i n c u s t o dy in a Puerto Rican penitentiary, and the district court issued a writ of habeas corpus ad prosequendum to sec u r e h e r appearance in the district court. The appellant's guilty plea followed apace.

This brings us to the Agreement, which stipulated a base offense l e v e l (BOL) of six for the offense of conviction (the counterfeiting conspiracy). See USSG §2B1.1(a)(2). The government agreed to recommend a sen t e n ce 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.

Determ i n i n g that the amount of loss attributable to the conspiracy exceeded $30,000, the probation officer adde d s i x more levels to the stipulated BOL. See id. §2B1.1(b)(1)(D). Because the appellant accepted responsibility for the offense of conviction, she-4-

received a two-level credit. See id. §3E 1 . 1 ( a ) . Her adjusted offense level was, therefore, ten.

The appellant h ad only two countable criminal history points accruing directly from past offenses. At the time of federal

s e n t e n c i n g , h o w e v e r , s h e h a db e g u n t o s e r v e t w o - y e a r c o n c urrent Puerto Rico s e n t e nces for having (i) passed a fraudulent check in the sum of $101.60 and (ii) fu r n i s h e d 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 o f f i c er classified them as r e l evant conduct with respect to the federal offense. See id. §1B1.3; see also United States v. Eisom, ___ F.3d

___,

___ ( 1 st Cir. 2009) [2009 WL 3669746, at *4] (explicating relevant conduct concept). Nevertheless, two more criminal history points were added because the a p p e l lant 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 adjust e do f f e n s e l e v e l ( t e n ) , t h i s p l a c e m e n t y i e l d e da G S Ro f ten to sixteen months.

The appellant was detained pursuant to the previo u s ly mentioned writ of habeas corpus from February 8, 2008, until after sentencing. The parties agree that this period of detention counted-5-

toward her fulfillmen t o f h er Puerto Rico sentences but did not count toward her sentence for the offense of conviction.

The district c o urt conducted a disposition hearing on Oct o b e r 1 4 , 2008. The appellant beseeched the court to impose a ten-month prison term, concurrent with the undischarged portion of her Puerto Rico sent e n c e s . 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 convict ion.

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

cou n t e r e dthat the court was under a "mandate" to impose a concurrent sentence. The government suggested that the matter was within the court's d i s c r etion. The court concluded that it had discretion to impose a concurrent sentence, but found t hat 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.-6-

The second involves t h e 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 foll owing 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 a nd surrenders her right to appeal the judgment and sentence in this case. The appellant a r g u e d in her opening brief that this provision was

a nu l l i t y because the lower court neither sentenced her in accordance with the Agreement nor us ed the concurrent sentence mechanism. While this argument may not be foolproof — the Agreement left open the criminal h i s t o ry 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 en d " o f that range — we need not delve into it. By eschewing any reliance on the waiver-o f

- a ppeal provision, the government has rendered that analysis superfluous.

The intentional relinqu i shment of a known right results in a waiv e r . Eisom, ___ F.3d at ___ [2009 WL 3669746, at *2] (citin g U n i t e d States v. Olano, 507 U.S. 725, 733 (1993)). In criminal cases, waiver doctrine is commonly invoke d t o bar a defendant's assertion of a claim. See, e.g., id. N e v e r t h eless,Of course, we have discretion t o overlook waiver by the 1 government in a criminal case when circumstances justify us in doing so
. S ee United States v. Borrero-Acevedo, 533 F.3d 11, 15 n.3 (1st Cir. 200 8 ) ; U n i t e d States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997); see also United States v. Moran, 393 F.3d 1, 11 (1st Cir. 2 0 04) (acknowledging this discretion, but declining to exercise it). There is nothing in the record of this case that commends such a practice to us. -7- 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 gove rnment 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 i s u s u a lly little reason to disregard that election. Cf. United States v. Guadelupe-Rivera, 501 F.3d 17, 2 0 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-app e a l provision, see Appellee's Br. at 6 n.3, and we see no justification for proceeding sua sponte to inquire i n t o its preclusive effect. B. Procedural Reasonableness. The appellant asseverates that the challenged sentence is procedurally unreasonable because the sentencing cour t failedThe Court listed several examples of procedural error, such 2 as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failin g t o consider the § 3553(a) factors, selecting a sentence ba s e d on clearly erroneous facts, or failing to ad e q u ately explain the chosen sentence — including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51. -8- 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 (200 5), the Supreme Court effected a sea change in the l a w o f 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. UnitedStates, 552 U.S. 38 (2007), the Court clarified that reasonableness review is functionally equivalent to review for abuse of disc retion. 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 e r r or 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 re v i e w f o r abuse of discretion. See United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). But abuse of discretion-9-

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 r e v i e w . 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, 6 7 ( 1 s t C ir. 1998) (explaining that review of legal error is non-deferential and that a distric t c o urt perforce abuses its dis c r e tion when it commits a material error of law). Because the claim of error now before us rests upon the interpretatio n of a guideline p rovision, that claim engenders de novo review. See United States v. Vasco, 564 F.3d 12, 22 (1st C ir. 2009); United States v. Rivera, 448 F.3d 82, 84 (1st Cir. 2006); see also United States v. Robinson, 433 F.3d 31, 3 5 (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 t o the appellant's claim that USSG §5G1.3(b) required the court below to impose a concurrent sentence. Asentencing court's choice between a consecutive or a concurrent sentence with respect to a d e f e ndant who is subject to an undischargedstate-court term of imprisonment is normally discretio n a r y. See 18 U.S.C. § 3584(a). But when exercising its discretion, the sentencing c ourt is under a direction to consider-10-

the factors enumerate d i n 18 U.S.C. § 3553(a), including any applicable sentencin g g u idelines 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 wh en there is a previously imposed but undischarged term of imprisonment that has "resulted from anoth e r offense that is relevant conduct to the instant of f e n s e of conviction" if the relevant conduct o f f e n s e "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, andt h i s c a s e d o e s n o t r e q u i r e u s t o s k e t c h i t s c o mplete architect u r e . 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. 3 d 4 1 , 4 4 (1st Cir. 2007). One such element is whether the relevant conduct offense — that i s , t h e offense underpinning the undischarged term of imprisonment — was the b a s i s 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 o f the-11-

b a s i s f o r the six-level increase in her offense level. See USSG §2B1.1(b)(1)(D) (pro v i d i ng 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 u sed at all in calculating the amount of loss (and, thus, in setting the adjusted offense level). To prove this p o i n t , 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 b e l o w , 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 d i s trict 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 e xclusion of the ledger, the appellant is still in deep water. A defendant bears the burden of provi ng the appl i c a b i l i t yo f a g u i d e l i n e p r o v i s i o n t h a t w i l l a m e l i o r a t e her sent e n c e . S e e U n i t e d S t a t e s v . M c L a u g h l i n , 3 7 8 F . 3 d 3 5 , 39 (1st Cir. 2004); United States v. Sanchez, 354 F.3d 7 0 , 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. -12- In this instance, that burden requires the appellant to show, among other things, that the check for $101.60 was used in calculating her

a d j u s t e d offense level. The record is utterly silent on this subject; there is no hint that t h e $101.60 check was used to

3 enhance the appellant's offense level. A lack of evidence o n 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 chec k b een used in computing the amount of loss, the appellant's claim would not succeed. According to unrebutted arithmetic in the PSI Repor t , t h e aggregate loss in this case exceeded $50,000. The threshold for the six-level offense level increase w a s $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. S e e 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"). ConsistentIn 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) (19 9 8 ) . T h a t e a r l i e r v e r s i o n w a s m o d i f i e db yt h e S e n t e n c i ng Commission's promulgation in 2003 of Amendment 660. That amendment clarified the guideline's meaning and made Caraballo something of an anachronism. See Li n o , 493 F.3d at 45. It is the clarified version of the guideline with which we are concerned. -13- with this definition, the Sentencing Commissio n i t self appears to regard the "basis" lang u a g e a s 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 i n a n 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 languag e 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 offe n s e a s relevant conduct did not effect a change in the defendant's offense level"). In shor t , t h e t e x t o f t h e g u i d e l i n e i s i n c o n s i s t e n t w i t h an interpretation, such as that urged by the appellant, under which an increm e n t al 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 o n the offense level can serve as the "foundation" of that level. We hold, therefore, that U S S G §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 n e e d f o r t h e s e n t e n c e i m p o s e d

— ( A ) t o r e f l e c t the seriousness of the offense, to pro m o t e 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 unwarran t e ds entence 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). -14-

The appellant's claim of procedural unreasonableness has another dimension. She asserts that the sentencing court erred in failing t o 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 sente nce plainly takes into account the section 3553(a) factors. For example, the co urt explicitly considered the appellant's trou bled 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 c r i m e s, her failure to capitalize on p revious 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.-15- A crimina l d efendant is entitled to a weighing of the section 3553(a) factors that are relevant to h e r case, not to a particular result. Here, the s entencing 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 senten cing court had discretion to impose either a consecutive or a concurrent sentence. See USSG §5G1.3(c); see also USSG §5G1.3, cmt. (b ackg'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 ca l l , free from procedural

error. C. Substantive Reasonableness.

Th e a p p e l l a n t ' s f i n a l c l a i m o f e r r o r c h a l l e n g e s the substantive reasonableness of the district court's decision to run the sentence consecutively. In p a r ticular, she posits that the sentence violates the parsimony princip le of 18 U.S.C. § 3553(a), which states that the sentence imposed should be "sufficie nt, but not greater t h a n n ecessary." 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

wa y f o r t h e d i s t r i c t c o u r t t o e f f e c t u a t e t h a t m o d e s t l evel 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. D í a z - F o n t á n e z , 3 1 7 F . A p p ' x 9 , 1 0 ( 1 s t C i r . 2 0 0 8 ) , 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 -16- 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 co n v i c tion 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. H e r e , the court

vo i c e d i t s c o n c e r n t h a t t h e G S R u n d e r s t a t e d t h e s e v e r i t yof the offense of conviction and pointed out tha t 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 c o n v i c t i o ns. 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 exigibl e . W e hold, without serious question, that the challenged sentence is not substantively unreasonable. 6to 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.

-17- III. CONCLUSION

We need go no further. For the reasons elucidated above, we conclude that the district court did not commi t a n a b use of discretion and, therefore, uphold the challenged sentence.

Affirmed.