United States Court of Appeals

For the First Circuit

No. 02-2303

UNITED STATES OF AMERICA,

Appellee,

v.

IVAN VAZQUEZ-ALOMAR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

 Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

José R. Franco and José R. Franco Law Office on brief for

appellant.

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

Chief, Criminal Division, and Nelson Pérez-Sosa, Assistant United

States Attorney, on brief for appellee.

August 22, 2003
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SELYA, Circuit Judge. Constancy is a virtue, and he who

vacillates often pays a price for his indecision. This sentencing

appeal illustrates the point.

We extract the relevant facts from the plea agreement,

the change-of-plea colloquy, the transcript of the disposition

hearing, and the documents in the record. See United States v.

Martinez-Vargas, 321 F.3d 245, 247 (1st Cir. 2003); United States

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

Defendant-appellant Ivan Vazquez-Alomar has a history of

trouble with the law. Pertinently, he pled guilty to federal drug

trafficking and money laundering charges on June 11, 1999. The

United States District Court for the District of Puerto Rico

sentenced him to serve a 70-month incarcerative term in a federal

correctional facility. On May 24, 2000, he pled guilty in the same

court to additional drug-trafficking violations and to transporting

firearms. He received a 78-month sentence, to be served

concurrently with his previous sentence.

The charges underlying this appeal stem from a protracted

investigation by federal agents into the laundering of drug

proceeds. This probe revealed that for a period of roughly ten

months commencing around December of 1998, the appellant

participated in the laundering of drug money within the United

States and abroad. On August 21, 2000, a federal grand jury

sitting in the District of Puerto Rico returned an indictment
1The indictment also contained drug-related charges, but those

charges were later dismissed. Accordingly, they need not concern

us.

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charging the appellant (who was then incarcerated as a result of

the sentences imposed in June 1999 and May 2000) with money

laundering in violation of 18 U.S.C. §§ 1956-1957.

Immurement did not check the appellant's penchant for

criminal activity. In November of 2000, while still incarcerated,

he engaged in telephone conversations concerning money laundering

and the importation and distribution of multi-kilogram quantities

of cocaine. He did not inform the authorities of these

conversations, as federal law requires. See id. § 4.

On November 21, 2001, the grand jury returned a

superseding indictment that charged the appellant with, inter alia,

conspiracy to commit money laundering.1 Id. §§ 1956(a)(1)(A)(i),

1956(a)(2)(A), 1956(h), 1957. After initially proclaiming his

innocence, the appellant entered a guilty plea to the money

laundering count on May 1, 2002. On the same date, the government

charged him, by information, with misprision of a felony, id. § 4

— a charge based on the in-prison telephone calls. The appellant

pled guilty to that charge as well.

Coincident with these developments, the parties entered

into a non-binding plea agreement (the Agreement). See Fed. R.

Crim. P. 11(e)(1)(C). The Agreement spelled out certain proposed

offense level adjustments and, based on those stipulations,
2All references to the sentencing guidelines are to the

November 2000 edition, which was in effect when the instant

offenses were committed. See United States v. Harotunian, 920 F.2d

1040, 1041-42 (1st Cir. 1990).

3The relevant section of the Agreement states that "[t]he

United States will request at the time of sentencing that the

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memorialized an agreement "that the appropriate disposition of this

case" would be a sentence of 135 months' imprisonment. The length

of this proposed sentence derived from the following calculation

(made by the government, acquiesced in by the appellant, and

eventually adopted by the district court). The calculation started

with the base offense level for laundering monetary instruments:

level 23. USSG §2S1.1(a)(1).2 The base offense level was

increased by six levels because the funds in question exceeded

$2,000,000. Id. §2S1.1(b)(2)(G). Three more levels were added due

to the appellant's knowledge that the funds represented the

proceeds of an unlawful activity involving the distribution of

controlled substances. Id. §2S1.1(b)(1). That subtotal (32) was

reduced by three levels for acceptance of responsibility. Id. §

3E1.1. Given the appellant's adjusted offense level (29) and

criminal history category (III), the projected guideline sentencing

range was 108-135 months. The sentence that the parties agreed to

recommend to the court reflected the top of that range. 

 The parties also agreed (i) that the government would

request that the two new sentences (one for money laundering and

the other for misprision) be served concurrently;3 (ii) that "no
sentence imposed in Criminal No. 00-692(CCC) [money laundering] be

imposed concurrent with that in Criminal No. 01-379 (JAF)

[misprision of a felony]." Because the sentence for money

laundering substantially exceeded the sentence for misprision, we

henceforth refer to the former as "the new sentence." 

4USSG § 5G1.3 provides in pertinent part:

(a) If the instant offense was committed while the

defendant was serving a term of imprisonment . . . the

sentence for the instant offense shall be imposed to run

consecutively to the undischarged term of imprisonment.

(b) If subsection (a) does not apply, and the

undischarged term of imprisonment resulted from

offense(s) that have been fully taken into account in the

determination of the offense level for the instant

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further adjustments or departures to the base offense level would

be sought;" and (iii) that "any request by [the appellant] for any

further guideline adjustments . . . will be considered by the

United States as a breach of this [Agreement]." The Agreement

neither referred to the appellant's previous crimes nor mentioned

his existing incarceration.

At the time that he signed the Agreement, the appellant

was represented by two experienced defense lawyers. He

subsequently retained yet a third attorney, José R. Franco-Rivera,

to work in conjunction with them. If two were company, three

proved to be a crowd: on September 3, 2002, Franco-Rivera, without

the assent of his two co-counsels, filed a motion seeking to have

the new sentence run concurrently with the unexpired portions of

the appellant's existing sentences. In this motion, the appellant

argued that USSG §5G1.3(b) required that result.4 In the
offense, the sentence for the instant offense shall be

imposed to run concurrently to the undischarged term of

imprisonment.

(c) (Policy Statement) In any other case, the sentence

for the instant offense may be imposed to run

concurrently, partially concurrently, or consecutively to

the prior undischarged term of imprisonment to achieve a

reasonable punishment for the instant offense.

USSG §5G1.3. 

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appellant's view, his previous drug-trafficking convictions had

been fully taken into account in the determination of the offense

level for his new sentence by reason of the three-level enhancement

for his knowledge that the laundered funds were drug proceeds.

The disposition hearing took place on September 4, 2002.

The appellant's three attorneys were present to represent their

common client.

The district court first addressed the September 3

motion. The court quickly ascertained that the appellant's

original lawyers, Marlene Aponte Cabrera and Rafael Castro Lang,

had no input into the filing of that motion. Aponte then stated

that she believed the motion contravened the Agreement. Castro

concurred with that assessment. The court asked the appellant what

he wished to do in view of the fact that the motion was deemed

inadvisable by two of his three attorneys. The appellant replied

that he desired to "withdraw the motion . . . [and] proceed with

the sentencing."
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Despite this blunt disavowal, the district judge

conducted a thorough inquiry. She questioned the government on its

interpretation of the Agreement, heard again from the appellant,

and listened to his battery of attorneys. In the end, the judge

noted that the only mention of concurrent sentences in the

Agreement was the linkage between the money laundering and

misprision charges, see supra note 3, and that the Agreement made

no reference to other criminal cases or sentences. The judge

concluded that, under the circumstances, granting the motion would

be an "unwarranted modification of the plea agreement" and,

therefore, denied it.

From that point forward, the disposition hearing

proceeded smoothly. In line with the Agreement, the district court

sentenced the appellant to a 135-month incarcerative term for money

laundering and a 36-month incarcerative term for misprision of a

felony. The court ordered those terms to run concurrently with

each other but consecutive to the undischarged portions of the

earlier sentences. 

On September 12, 2002, the appellant filed a timely

notice of appeal. In this venue, he argues that his motion for the

imposition of concurrent sentences should not have been denied

because the Agreement did not speak to this aspect of the matter

and, therefore, granting the motion would not have been

inconsistent with the Agreement. Moreover, the applicable
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provisions of the sentencing guidelines mandated running the

sentences concurrently. See USSG §5G1.3, quoted supra note 4.

The government's first line of defense is that the

appellant waived this claim. Waiver is the "intentional

relinquishment or abandonment of a known right." United States v.

Olano, 507 U.S. 725, 733 (1993) (citing Johnson v. Zerbst, 304 U.S.

458, 464 (1938)); see also United States v. Rodriguez, 311 F.3d

435, 437 (1st Cir. 2002). What constitutes a waiver depends in the

first instance on the nature of the right at issue. See New York

v. Hill, 528 U.S. 110, 114 (2000). Criminal defendants may waive

most rights as long as they do so "voluntarily and with knowledge

of the general nature and consequences of the waiver." United

States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001). When a criminal

defendant identifies an issue and then declines to pursue it, he

normally will be deemed to have waived that issue for the purpose

of appellate review. See Rodriguez, 311 F.3d at 437; United States

v. Ross, 77 F.3d 1525, 1542 (7th Cir. 1996).

The record here is transparently clear that the September

3 motion brought the possibility of a broadly concurrent sentence

— one that would have encompassed both the new sentence and the

undischarged portions of the earlier terms — squarely before the

district court. Having raised the issue, however, the appellant

then retreated and stated unequivocally that he wished to withdraw

his motion. The appellant's trio of attorneys acquiesced in this
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decision (indeed, two of them had opposed the filing of the motion

from the moment that they learned of it, and the third — the

motion's original proponent — ultimately agreed with this course of

action).

The withdrawal of the motion constituted an express

waiver, and the appellant is bound by that waiver. See Rodriguez,

311 F.3d at 437; United States v. Mitchell, 85 F.3d 800, 807 (1st

Cir. 1996). His appeal therefore fails.

We hasten to add that, even if we were willing to

overlook the waiver, the appeal would not bear fruit. Stripped of

rhetorical flourishes, the appellant's position is that the lower

court had the duty to make his new sentence run concurrently with

the unexpired portions of his earlier sentences. This position is

simply wrong.

The Agreement is silent (and, therefore, not dispositive)

as to how the appellant's new sentence should be aligned with the

unexpired portions of his earlier sentences. For present purposes,

however, the important fact is that nothing in the Agreement

demands that the court run the sentences concurrently. By like

token, nothing in the sentencing guidelines requires such an

outcome. We explain briefly.

The new sentence was based on the appellant's money

laundering conviction. See supra note 3. The appellant's argument

depends on the notion that the new sentence gave full effect to the
5The relevant guideline provides that "[i]f the defendant knew

or believed that the [laundered] funds were the proceeds of an

unlawful activity involving the manufacture, importation, or

distribution of narcotics," the sentencing court should boost the

offense level by three levels. USSG §2S1.1(b)(1).

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drug trafficking that formed the basis for his earlier sentences.

We disagree: the three-level upward adjustment under USSG

§2S1.1(b)(1) was grounded not on the appellant's involvement per se

in drug trafficking, but, rather, on his knowledge of illegal

activity.5 See United States v. Rivera-Rodriguez, 318 F.3d 268,

278-79 (1st Cir. 2003); United States v. Bierd, 217 F.3d 15, 23

(1st Cir. 2000); cf. United States v. Lombardi, 5 F.3d 568, 571

(1st Cir. 1993) (holding that mail fraud and money laundering

convictions should not be grouped even though offense level for

money laundering was increased based on defendant's knowledge that

funds were proceeds of mail fraud). It is, therefore, readily

evident that the earlier sentences did not result from conduct that

had been "fully taken into account in the determination of the

offense level for the [offense of conviction]." USSG §5G1.3(b).

In situations, like this one, that are not covered by the

first two subsections of USSG §5G1.3, subsection (c) applies.

Under this proviso, the court, in its discretion, may impose a

sentence concurrently, partially concurrently, or consecutively.

See id. §5G1.3(c), cmt. (n.3). The end result need only be

"reasonable." United States v. Caraballo, 200 F.3d 20, 28 (1st

Cir. 1999). The default rule in such situations is for the
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sentences to run consecutively. See 18 U.S.C. § 3584(a); see also

United States v. Quinones, 26 F.3d 213, 216-17 (1st Cir. 1994);

United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir. 1993).

In this instance, the district court hardly can be

faulted for following the default rule. After all, the court had

good reason to conclude that granting the concurrent sentence

motion would impugn the spirit, if not the letter, of the

Agreement. The Agreement mentioned only the offenses of conviction

(money laundering and misprision of a felony) and provided that the

sentences for those two crimes should run concurrently with each

other. Given that level of specificity, it was reasonable for the

district court to conclude that the parties did not intend to have

those sentences run concurrently with the unexpired portion of any

previous sentence.

This conclusion is bolstered by three facts. First, the

Agreement included a standard integration clause signifying that it

contained the entire agreement among the parties and their counsel.

Second, the Agreement explicitly warned that "[t]he United States

has made no promises or representations except as set forth in

writing in this plea agreement and den[ies] the existence of any

other term . . . not stated here." Third, the concurrent sentence

motion, if granted, would have resulted, as a practical matter, in

a considerably more lenient sentence than that called for by the

Agreement — a result that would seem odd given the government's
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extraction of a promise that the appellant would seek no further

guideline adjustments or departures.

To say more would be to paint the lily. USSG §5G1.3(c)

governs here, and the district court had discretion as to whether

to make the new sentence run concurrently or consecutively vis-àvis the undischarged portions of the earlier sentences. On this

record, the sentencing court had ample reason to deny the motion

and hold the appellant to the spirit of the Agreement. Any claim

that the court abused its discretion in following that course would

be an exercise in futility.

We need go no further. The record reveals that the

district court appropriately questioned the appellant and his

phalanx of attorneys regarding the concurrent sentence motion and

gave the appellant a choice as to how to proceed. The appellant

elected to withdraw the motion. Given that explicit election, the

doctrine of waiver bars the appellant's belated attempt to

resurrect the issue on appeal. In any event, the lower court acted

well within the realm of its discretion in refusing to shape its

sentence to fit the contours proposed in the concurrent sentence

motion.

Affirmed.