# United Stat es Court of Appeals For the First C ircuit

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 ]-2- 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. Klum per , Assistant United States Attorney, on brief for appellee.

February 14, 2003-2-

COFFIN, Senior Circuit Judge . These are two criminal appeals involving sentencing issues. Appellant Molina-Marrero Appellant Molina-Marre r o pleaded guilty to counts in three indi ctment s. 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, a nd t he taking of money and vehicles. He was se ntenced 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 supervisedrelease terms. A requirement o f rest itution was also imposed. Appellant's sole argument o n ap peal 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 armoredcar 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 facedby appellant is to identify "evidence [that] overwhelmingly demonstrate s that [he] played a part that makes him substantially less culpable than t he 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 structuredand meticulous conspiracy to rob a Loomis Fargo truck at-3-

a branch of Banco Popular. The planning was done during the week before the event. No fewer than eight persons were involved. One provide da 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. Thr ee 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 currencyfrom the gua rds. 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 ap pellant 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), shouldbe supported by "'reasonably speci f ic 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-4-

reliedupon 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 w eapo ns 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 sharedthe same intent as his co-de fendants. 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 r obbery. Appellant was describedin the PSR a s d onning a black mask, carrying a .38-5-

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 wa s 20, the court, noting the existence of prior conv icti ons for crimes of violence, in accordance with Guideline § 4B1.1, imposed a sentence based on the much higher level for career offenders, 32, a nd a h igher Criminal History categoryof VI. After a reduction of 3 levels for acceptance of respon sibil ity, the result was a total offense level of 29. The appropriate range of sentenc e was 151 to 188 months. The court imposeda sentence on Count Two of 151 mont hs and the mandatory consecut ive fi ve-year sentence on Count Three, together with ancillaryprovisions 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 ac comp anying appellant's plea included a waiver of any right to appeal the sentence impos ed pur suant to that agreement, the controlling question is whether appellant's plea was kno wing and voluntary. We appl y the three-point inquiry we articulated in United States v. Teeter , 257 F.3d 14, 24-25 (lst Cir. 2001). We assess-6-

the clarity and scope of the waiver in the Plea Agreement. We similarlyscrutiniz e t he change of plea hearing transcript, focusin g o n 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 possibilityof the court, under the Sentencing Guidelines, ordering

a fin e; 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.-7-

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 ba se off ense level for Coun t Two of 20; that defendant's acceptance of responsibility loweredthis to 17; that this level and a Criminal History Category of III yielded a sentencing range of 30 to 37 months. The United States agreedto recommend 30 months. In fact, the government did recommend30 months, unavailingly. Appellant claims that his attorneytold him that the government's recommended senten ce includedhis past convictions and that neither his attorney nor the government had told him that his prior criminal record "made the agreedstipulation virtually worthless," an d wa s merely a recommendation to the court. On its face, the Plea Agreement states exactly the non-binding natu re of the government's recommendation and the unrestrict e d 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 t h e court, addressed to appellant's understanding of the indictment, t he s pecific offense facts, and the constitution al rights that the plea was surrendering. Very specifically, in addressing Paragraph Seven containing the government's recommendation, the cou rt p ointed out that it would make its own review and, after the probation officer reported,-8-

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. T he requirements of Fed. R. Crim. P. 11 were faithfu ll y compliedwith. The whole point of striving for clear and specific plea agreements and meticulous a ndcomprehensive 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

cour t observed in United States v. Foster , 68 F.3d 86 (4 th Cir . 1995), any misinformation a defe ndant 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 subsequ ent d ialogue between the court and the defendant,'" id. at 88(citation omitted). Only if there were

some reliable indicia of such misinfo rmatio n or lack of vital communication could we s ay 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 of1 Appellant 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. -9- 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 r epor t made perfectlyclear that on March 18 , 1985, a nd on July 12, 1989, appe llant had pleaded guilty to aggravated assault in the former

case and attempted murder in the latter, receiving prison terms of three and five y ears respectively. These elevated appellant's criminal history as a career offender under Guideline § 4B1.1 to Criminal Category VI. While a sub sequent attorney for appellant didnot receive a copy until April 19, 2001, appellant not only was apparentlygiven the PSR before, but also exercised an opportunity to note his objections. M oreo ver, the nature of appellant's objections to the PSR effectivelyanswers 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 andone-10-

month for crimes of violence may be counted as prior convictions if the crimes were committed within fifteen years of the crime currentlyunder 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 sta te sen tence, 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 HistoryIII] mis representation by the Government could have triggereda wrong decision to plea [sic] by defendant." Under the circumstances we have discussed, we conclude that appellant has not reachedthe high threshold of demonstrating a misc arri age of justice. In short, we find no basis for concluding that appellant's plea of guilty was other than knowing and voluntary. Ac cor dingly, for the above reasons, both judgments are AFFIRMED .