APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Barry S. Pollack, Peter J. Duffy and Pollack Solomon Duffy LLP on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division and Francisco A. Besosa-Martí nez, Assistant United States attorney, on brief for appellee.
Before Lynch, Chief Judge, Howard and Kayatta, Circuit Judges.
HOWARD, Circuit Judge.
After pleading guilty to a drug conspiracy charge, appellant Jonathan Delgado-Flores was sentenced to 135 months' imprisonment. Writ small, the conspiracy involved the use of boats to smuggle drugs from Puerto Rico and the Dominican Republic to the mainland United States. Delgado now seeks to have his sentence reduced or his case remanded for a new sentencing hearing, claiming that the government materially breached a plea agreement. The parties dispute whether Delgado preserved for appeal the issue of whether the government breached the agreement. We do not resolve that issue, as the result is the same regardless of the standard of review. See United States v. Gonczy, 357 F.3d 50, 52 (1st Cir. 2004) (observing that if a proper objection is brought before the district court, breaches of plea agreements present questions of law for plenary review, but unpreserved arguments are reviewed for plain error). Finding no breach, we affirm the sentence.
Two provisions of Delgado's plea agreement are central to this appeal. First, the agreement stipulated that Delgado would be held responsible for the importation of between fifteen and fifty kilograms of cocaine. This drug quantity would, assuming a Criminal History Category I and agreed-upon adjustments yield a sentencing guideline range of 135 to 168 months.
The second salient provision called for the government to recommend a sentence at the low end of the range -- 135 months -- while Delgado could argue for the statutory minimum of 120 months, which the government, in turn, could oppose. The agreement explicitly stated that it was not binding on the court. Fed. R. Crim. P. 11(c)(1)(A), (B).
Consistent with the agreement, at sentencing defense counsel sought a 120-month sentence, arguing essentially that Delgado was less culpable than others in this particular conspiracy, and that the statutory minimum sentence was " sufficient but not greater than necessary." 18 U.S.C. § 3553. For its part, the government argued for the agreement's 135-month maximum.
Two primary issues were then discussed. First, the judge expressed concern that Delgado also had been involved in firearms sales related to the drug conspiracy and rejected any defense argument that the firearms were unrelated to the conspiracy. Next, in response to defense counsel's observation that Delgado's role was limited to helping construct secret storage compartments (known as " clavos" ) on a vessel, the judge accepted the government's argument that the compartments were complicated and required expertise to build. For example, the following colloquy took place, referencing evidence introduced at the trial of a coconspirator:
MS. GRAY [defense counsel]: Okay. Judge, but we are talking about things we were not a party to.
THE COURT: No. He's talking to me about the clavos and how ...