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United States v. Colon-Rosario

United States Court of Appeals, First Circuit

April 19, 2019

ALEX COLÓN-ROSARIO, Defendant, Appellant.


          Irma R. Valldejuli on brief for appellant.

          Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

          Before Kayatta, Circuit Judge, Souter, [**] Associate Justice, and Selya, Circuit Judge.


         Dismayed by his 240-month prison sentence, defendant-appellant Alex Colón-Rosario claims that the prosecutor committed various breaches of his plea agreement (the Agreement) during the disposition hearing. Since the appellant raises these claims for the first time on appeal, our review is solely for plain error. Discerning none, we affirm the judgment below.

         I. BACKGROUND

         We briefly rehearse the relevant facts and travel of the case. Because this appeal trails in the wake of a guilty plea, we draw our account from the Agreement, the change-of-plea colloquy, the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Coleman, 884 F.3d 67, 69 (1st Cir. 2018).

         Following the expiration of a restraining order previously obtained by the mother of his seven-year-old son, the appellant began taking the boy to his house for weekend visits. During these interludes, the appellant voiced threats of violence, abused his son physically and sexually, and took pornographic pictures. The boy's mother eventually noticed a significant change in his behavior and learned of the abuse. On February 7, 2014, she notified the sex-crimes division of the Puerto Rico Police Department.

         Matters deteriorated even further when, on March 28, 2014, the son either threatened or attempted to commit suicide three times during the course of the day. After the third incident, the boy was hospitalized in a mental institution. He was discharged after eight days of inpatient care.

         We fast-forward to June 3, 2015, when a federal grand jury sitting in the District of Puerto Rico charged the appellant with three counts of transporting a minor (his son) with the intent to engage in criminal sexual activity. See 18 U.S.C. § 2423(a). The appellant initially maintained his innocence but, in due course, he entered into the Agreement and pleaded guilty to one count of the indictment.[1] The Agreement embodied the parties' stipulation to a total offense level (TOL) of 35. This figure included a two-level enhancement for the parental relationship, see USSG §2G1.3(b)(1); an eight-level enhancement for the victim's age, see id. §2G1.3(b)(5); and a three-level reduction for acceptance of responsibility, see id. §3E1.1(b). Although the Agreement indicated that other enhancements could be applied, they were omitted (apparently on purpose) from the offense level calculation. The Agreement left open the applicable criminal history category (CHC) but noted that a CHC of I would yield a guideline sentencing range (GSR) of 168-210 months. Not coincidentally, the Agreement constrained the government to argue for a sentence of 168 months (the bottom of the putative GSR). Finally, the Agreement contained a waiver-of-appeal provision, which would take effect only if the district court sentenced the appellant "according to [the Agreement's] terms, conditions and recommendations, or sentence[d] him to any term of incarceration within the applicable guideline range based on a [TOL] of 35."

         The tectonic plates shifted, though, when the probation department compiled the PSI Report. There, the probation department recommended a TOL of 43 - a figure reached by beginning with a higher base offense level and including enhancements that had not been factored into the guideline calculations used in the Agreement, such as enhancements for threats or force, the victim's vulnerability, serious bodily injury, and a pattern of criminal activity. See id. §§2A3.1(b)(1), 2A3.1(b)(4)(B), 3A1.1(b)(1), 4B1.5(b)(1). In combination with a CHC of I, this increased TOL boosted the appellant's GSR to life imprisonment. Neither party objected to the guideline calculations adumbrated in the PSI Report.

         The appellant proceeded to file a sentencing memorandum seeking a 120-month sentence (the mandatory minimum for the offense of conviction). The memorandum outlined what he believed were mitigating factors, such as his impoverished childhood and his lack of education. The government's sentencing memorandum defended the GSR calculated in the Agreement and explained that this calculation was "result-oriented" in that the government had tendered the plea offer to protect the victim from the trauma of a trial. Accordingly, the government asked the court to impose a 168-month sentence.

         The disposition hearing was held on October 25, 2017.[2]At the hearing, the sentencing court adopted the guideline calculations set out in the PSI Report (not those limned in the Agreement). Defense counsel argued for the mandatory minimum sentence - a 120-month term of immurement. For his part, the prosecutor argued in support of an incarcerative sentence of 168 months. After considering the contentions of counsel, the PSI Report, and the factors ...

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