United States Court of Appeals

For the First Circuit

Nos. 01-2377

01-2380

01-2382

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE MOLINA-MARRERO,

Defendant, Appellant.

No. 01-2451

UNITED STATES OF AMERICA,

Appellee,

v.

RENE CORE-AYALA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before

 Lynch, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

William M. Palmer, by Appointment of the Court, on brief for

appellant Molina-Marrero.

Raul S. Mariani Franco, by Appointment of the Court, on brief

for appellant Core-Ayala.

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

Assistant United States Attorney, Thomas F. Klumper, Assistant

United States Attorney, on brief for appellee.

February 14, 2003
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COFFIN, Senior Circuit Judge. These are two criminal appeals

involving sentencing issues.

Appellant Molina-Marrero

Appellant Molina-Marrero pleaded guilty to counts in three

indictments. All three involved appellant and a number of

associates in robberies (of a bank, a car dealership, and a Loomis

Fargo truck), the use of firearms, and the taking of money and

vehicles. He was sentenced to 87 months of imprisonment on one

count in each indictment to run concurrently, together with a fiveyear consecutive term on a second count in one indictment, and

supervised release terms. A requirement of restitution was also

imposed.

Appellant's sole argument on appeal focuses on the district

court's refusal, without specific findings of fact, to grant a twopoint downward adjustment based on his playing a minor role in the

armored car robbery. We review the court's decision for clear

error. See United States v. Ortiz-Santiago, 211 F.3d 146, 148-49

(lst Cir. 2000). The hurdle faced by appellant is to identify

"evidence [that] overwhelmingly demonstrates that [he] played a

part that makes him substantially less culpable than the average

participant in the convicted offense." United States v. Brandon,

17 F.3d 409, 460 (lst Cir. 1994).

In this case, the Presentence Report (PSR) described a highly

structured and meticulous conspiracy to rob a Loomis Fargo truck at
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a branch of Banco Popular. The planning was done during the week

before the event. No fewer than eight persons were involved. One

provided a radio for use as a police scanner. Several vehicles

carrying the conspirators drove to the vicinity of the bank to

await arrival of the truck. Three began surveillance at a bus

stop. Two carried pistols and one a semi-automatic rifle, which

was later fired. Another began surveillance from a nearby hot dog

cart. Appellant arrived and also began surveillance. Two donned

masks and, with two others, confronted two truck guards, pointed a

gun at the driver, disarmed a passenger guard, and took a bag of

currency from the guards. The masked conspirators brandished a

pistol and a rifle. Appellant had kept up his surveillance and, at

the conclusion of the robbery, drove one of the getaway vehicles.

It is clear that the court was well within its discretion in

viewing this portrayal as one in which each conspirator's assigned

role – surveillance, confrontation, seizing currency, and driving

getaway vehicles – was vital to the success of the enterprise, so

that appellant could be deemed substantially as culpable as his

partners.

We have noted that the court's articulated reasons for

imposing a particular sentence, as required by 18 U.S.C. § 3553(c),

should be supported by "'reasonably specific findings,'" United

States v. Van, 87 F.3d 1, 2 (lst Cir. 1996) (citation omitted). We

have found "minimal compliance" with this obligation when the court
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relied upon a PSR that "provided a sufficient basis for meaningful

appellate review." Id. at 2-3; see also United States v. Cruz, 981

F.2d 613, 617-18 (lst Cir. 1992). 

It is clear from the sentencing transcript that the court was

well aware of the circumstances of the robbery as described in the

PSR. Most of the colloquy between the court and counsel concerned

the imposition of added points to appellant's sentence based on his

partners' brandishing of weapons and the government's refusal to

recognize the extent of appellant's cooperation. Only one comment

was directed to appellant's role in the offense.

The court, in its response to the arguments of counsel, dealt

in detail with appellant's remarks concerning brandishing,

pointing out that the interrelated roles indicated that appellant

shared the same intent as his co-defendants. Then it added that

appellant's "participation is not that of a minor participant and

the court will not grant him a two level decrease." On this

record, we hold that the court committed no reversible error.

Appellant Core-Ayala

The Loomis Fargo indictment is the one in which appellant

Core-Ayala pleaded guilty. The two matters at issue are Count Two,

charging robbery plus actions and threats of force, including

threats of shooting others to death, and Count Three, using and

carrying firearms in connection with the robbery. Appellant was

described in the PSR as donning a black mask, carrying a .38
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caliber pistol, confronting two Loomis truck guards outside a bank,

pointing a gun at the driver, disarming the passenger guard, and

brandishing his pistol. 

Although the offense level prescribed for the robbery in the

Sentencing Guidelines was 20, the court, noting the existence of

prior convictions for crimes of violence, in accordance with

Guideline § 4B1.1, imposed a sentence based on the much higher

level for career offenders, 32, and a higher Criminal History

category of VI. After a reduction of 3 levels for acceptance of

responsibility, the result was a total offense level of 29. The

appropriate range of sentence was 151 to 188 months. The court

imposed a sentence on Count Two of 151 months and the mandatory

consecutive five-year sentence on Count Three, together with

ancillary provisions regarding supervised release, restitution, and

fines.

Appellant raises two issues: whether the court erred in

applying the career offender sentence enhancement and whether his

plea of guilty was knowing and voluntary. Since, however, the Plea

Agreement accompanying appellant's plea included a waiver of any

right to appeal the sentence imposed pursuant to that agreement,

the controlling question is whether appellant's plea was knowing

and voluntary.

We apply the three-point inquiry we articulated in United

States v. Teeter, 257 F.3d 14, 24-25 (lst Cir. 2001). We assess
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the clarity and scope of the waiver in the Plea Agreement. We

similarly scrutinize the change of plea hearing transcript,

focusing on the defendant's knowledge and volition. Finally, a

miscarriage of justice, including a plain error in sentencing, may

be a basis for refusing to honor the waiver.

First, the Plea Agreement. It began with a description of the

charges in Counts Two and Three, the maximum penalty of the former

being twenty years and the mandatory consecutive imprisonment term

under the latter being five years. Subsequent paragraphs affirmed

appellant's awareness of the wide discretion of the court

concerning sentencing guideline calculations or stipulations; the

possibility of the court, under the Sentencing Guidelines, ordering

a fine; and his awareness that his sentence would be within the

judge's discretion acting under the Guidelines, up to the statutory

maxima. If a maximum sentence were imposed, this would not justify

a withdrawal of a guilty plea. Other provisions attested that

appellant was satisfied with his attorney and with the statement of

facts concerning the offenses set forth in the Agreement. The

Agreement also affirmed that it represented the complete agreement

between the government and appellant, that the government had not

made any other promises or representations, and that there were no

other terms or conditions. As noted, appellant also waived any

right to appeal.
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Central to appellant's claim of involuntariness is Paragraph

Seven. This sets forth an agreement between the government and

defendant that the Guidelines indicated a base offense level for

Count Two of 20; that defendant's acceptance of responsibility

lowered this to 17; that this level and a Criminal History Category

of III yielded a sentencing range of 30 to 37 months. The United

States agreed to recommend 30 months. In fact, the government did

recommend 30 months, unavailingly. Appellant claims that his

attorney told him that the government's recommended sentence

included his past convictions and that neither his attorney nor the

government had told him that his prior criminal record "made the

agreed stipulation virtually worthless," and was merely a

recommendation to the court.

On its face, the Plea Agreement states exactly the non-binding

nature of the government's recommendation and the unrestricted

discretion, within the Guidelines, of the court. If there were any

doubt about this, it would be erased by a reading of the transcript

of the hearing on the change of plea. This was a lengthy and

meticulous interrogation by the court, addressed to appellant's

understanding of the indictment, the specific offense facts, and

the constitutional rights that the plea was surrendering. Very

specifically, in addressing Paragraph Seven containing the

government's recommendation, the court pointed out that it would

make its own review and, after the probation officer reported,
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determine if appellant fell in a different Criminal History

category, and that a higher category would result in a greater

sentence. Appellant affirmatively indicated his understanding.

The requirements of Fed. R. Crim. P. 11 were faithfully

complied with. The whole point of striving for clear and specific

plea agreements and meticulous and comprehensive inquiries at

change of plea hearings would be missed if such proceedings could

be plummeted into further litigation by claims that attorneys did

not communicate with their clients or misinformed them. As the

court observed in United States v. Foster, 68 F.3d 86 (4th Cir.

1995), any misinformation a defendant received from his attorney

can be corrected by proper information from the court at the Rule

11 hearing; the court noted that "'the criminal justice system must

be able to rely on the subsequent dialogue between the court and

the defendant,'" id. at 88(citation omitted). Only if there were

some reliable indicia of such misinformation or lack of vital

communication could we say that a miscarriage of justice had

trumped procedural regularity.

Such is not the instant case. Appellant charges error in

applying the career offender guidelines because of a lack of notice

of this possibility, a failure to meet a heightened burden of

proof, and excessive remoteness of the prior convictions.

As for the basic due process requirement of "'reasonable

notice and an opportunity to be heard regarding the possibility of
1Appellant seeks belatedly in his appellate brief to challenge

his 1985 conviction for attempted assault on the ground that there

was no proof that he had actually served time in prison. This

argument, of course, comes far too late in the day.

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an enhanced sentence for recidivism,'" Damerville v. United States,

197 F.3d 287, 290 (7th Cir. 1999) (citation omitted); see also

United States v. Craveiro, 907 F.2d 260, 264 (lst Cir. 1990), two

copies of the PSR were sent to appellant's then counsel on May 18,

2000, fourteen months before sentencing. This report made

perfectly clear that on March 18, 1985, and on July 12, 1989,

appellant had pleaded guilty to aggravated assault in the former

case and attempted murder in the latter, receiving prison terms of

three and five years respectively. These elevated appellant's

criminal history as a career offender under Guideline § 4B1.1 to

Criminal Category VI. While a subsequent attorney for appellant

did not receive a copy until April 19, 2001, appellant not only was

apparently given the PSR before, but also exercised an opportunity

to note his objections.

Moreover, the nature of appellant's objections to the PSR

effectively answers appellant's challenge to the sufficiency of the

evidence of prior convictions. For appellant's only attack on that

evidence was not the sufficiency of proof but that the convictions

were more than ten years old. This fact leads directly to

appellant's final basis for challenge, that of remoteness.1 Under

Guidelines §§ 4B1.1 and 4A1.2(e), sentences over one year and one
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month for crimes of violence may be counted as prior convictions if

the crimes were committed within fifteen years of the crime

currently under review. Both crimes noted above meet these

requirements.

We note finally that we are lacking any basis for concluding

that appellant would not have pleaded guilty and would have fared

better had he been made aware of the likelihood of being assigned

career offender status. As it turned out, the court not only made

his federal sentence run concurrently with a state sentence, but

also sentenced at the bottom of the applicable range. And

appellant's own final assessment in his objections to the PSR was

less than compelling. His conclusion was that "this [Criminal

History III] misrepresentation by the Government could have

triggered a wrong decision to plea [sic] by defendant." Under the

circumstances we have discussed, we conclude that appellant has not

reached the high threshold of demonstrating a miscarriage of

justice. In short, we find no basis for concluding that

appellant's plea of guilty was other than knowing and voluntary.

Accordingly, for the above reasons, both judgments are

AFFIRMED.