FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Louis Guirola, Jr., [*] U.S. District Judge]
R. Valldejuli on brief for appellant.
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.
Kayatta, Circuit Judge, Souter, [**] Associate Justice, and Selya,
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.
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).
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.
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.
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. 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."
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.
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.
disposition hearing was held on October 25,
2017.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