APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. JoséA. Fusté, U.S. District Judge.
Susan Z. Jorgensen, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Carmen M. Márquez-Marín, Assistant United States Attorney, were on brief, for appellee.
Sharon L. Beckman, with whom Larissa Warren and Graham D. Welch were on brief, for defendant-appellant.
Before Barron, Selya, and Dyk,[*] Circuit Judges.
DYK, Circuit Judge.
Ademir Castro-Vasquez pled guilty to being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal he challenges his conviction and the 78-month sentence imposed by the United States District Court for the District of Puerto Rico. We affirm Castro-Vazquez's conviction, but we vacate and remand for reconsideration of the sentence because the district court erred in its approach to applying a ten-level sentencing enhancement under the United States Sentencing Guidelines (" guidelines" ) § 2K2.1(a)(2).
On September 26, 2012, acting on an anonymous tip, Puerto Rico Police Department officers were investigating the presence of suspicious persons at a gas station in Trujillo Alto, Puerto Rico. They observed Castro-Vazquez, allegedly pacing nervously, accompanied by another man, Allen Miranda-Melendez, filling a container with gas for a car parked nearby at the side of a rural road. One officer observed a bulge on Castro-Vazquez's waist. After stopping the two men at the parked car, Castro-Vazquez was asked to lift up his shirt, which he refused to do. One of the officers then lifted up Castro-Vazquez's shirt, and saw a firearm on his waist, at which point both men were arrested. Castro-Vazquez was charged with being a convicted felon in possession of a firearm under 18 U.S.C. § 922(g)(1). Miranda-Melendez was charged with conspiring with Castro-Vazquez to commit robbery under 18 U.S.C. § 1951(b)(1), though Castro-Vazquez was not himself charged with such a conspiracy.
At his arraignment on October 17, 2012, Castro-Vazquez pled not guilty. The magistrate judge ordered that the parties would have " 7 days for discovery and 14 days thereafter to file any motions." At a status conference held November 7, 2012, the district court set trial for December 3, 2012, and refused the defense counsel's request for additional time. On November 30, 2012, the defense counsel filed a motion to continue the trial for one week. The court instead granted a one-day continuance to December 4.
Two days before trial was scheduled, Miranda-Melendez's attorney filed a motion to suppress certain incriminating statements that Miranda-Melendez had allegedly made. One day before trial was scheduled, Castro-Vazquez's attorney also filed a motion to suppress evidence, including the firearm and a mobile phone with pictures of the defendant carrying the firearm, seized at the time of Castro-Vazquez's arrest. Castro-Vazquez alleged that this evidence should be suppressed because it was the result of an unlawful warrantless search, seizure, and arrest in violation of the Fourth Amendment. In opposing the motion to suppress, the government raised no timeliness objection to the motion. Instead, the government argued that the officers had reasonable suspicion to stop and frisk Castro-Vazquez, and probable cause to arrest him. The district court denied both defendants' motions, stating that, with respect to Castro-Vazquez's motion, the court " will not entertain a motion to suppress filed on the eve of trial." The court also stated that Miranda-Melendez and Castro-Vazquez should make their suppression arguments " at trial and as part of the Rule 29 motion." Id.
Miranda-Melendez chose to take the district court's recommended course. He went to trial and requested suppression of the incriminating statements. The district court suppressed the statements and dismissed his case apparently because, in the absence of the statements, there was insufficient evidence. Castro-Vazquez, however, took a different tack. On the morning trial was to begin and before the jury was empaneled, at about 10:30 A.M., Castro-Vazquez's counsel asked for ten minutes for a bench conference, during which she renewed the motion to suppress. The court again refused to hear the motion, noting that counsel " filed it hours before trial would start" and that the court " will not consider a late motion" because " [m]otions to suppress have to be timely filed." The court also stated that it would allow the suppression issue to be raised at trial, expressly stating that the point was " preserv[ed]." The bench conference for both defendants lasted until about 11:00 A.M. About a half hour later, Castro-Vazquez requested a change-of-plea hearing. At the colloquy, the district court asked Castro-Vazquez a number of questions to ensure that he understood the charges and was pleading voluntarily. When asked whether he was satisfied with his attorney's work, Castro-Vazquez apparently responded in the affirmative but with what the district court characterized as a " grimace." The district court repeated the question and told Castro-Vazquez he did not have to plead guilty, but Castro-Vazquez noted he was not being forced to plead guilty, and the court accepted the plea.
Castro-Vazquez was sentenced on March 22, 2013. At his sentencing hearing, the district court sentenced him to 78 months, using as a guideline range 63 to 78 months, based on a total offense level of 22 and a criminal history category of IV. The total offense level of 22 was calculated by relying on Section 2K2.1 of the Sentencing Guidelines, which provides a prior felony enhancement for unlawful possession of a firearm. The base offense level is increased from 14 to 24 " if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). The total offense level was 22 because Castro-Vazquez was also given a two-level reduction for his acceptance of responsibility. The district court did not state which of Castro-Vazquez's prior convictions were relied on to arrive at the guideline range, relying instead on the presentence report. The report stated that the base offense level was calculated pursuant to Section 2K2.1(a)(2), and listed seven prior convictions (with three separate concurrent sentences) for burglary, robbery, and certain drug-related crimes, but the report also did not state which of those prior convictions were relied on for the prior felony enhancement. Castro-Vazquez entered no objections to the contents of the report (though as discussed below there is a question whether there was verification that Castro-Vazquez " read and discussed" the report with counsel, see Fed. R. Crim. P. 32(i)(1)(A)). During sentencing, the district court recited some facts concerning Castro-Vazquez's prior criminal activity alleged in the report, and noted that the sentences for his prior convictions had been concurrent and too lenient.
Castro-Vazquez challenges the voluntariness of his unconditional guilty plea. Although both Castro-Vazquez and the government suggest the standard of review is de novo, in fact we have yet to decide whether, when a defendant challenges the voluntariness of a plea on grounds other than a Rule 11 error, review
is de novo even if defendant did not object below. See United States v. Rodríguez-Morales,647 F.3d 395, 398 (1st Cir. 2011); Sotirion v. United States,617 F.3d 27, 34 n.6 (1st Cir. 2010). We need not decide the issue now since we conclude that, even under a de novo standard of review, Castro-Vazquez's guilty plea has not been shown on this record to have been ...