United States v. Acevedo-Sueros, 2016 U.S. App. LEXIS 11002

Background

Santos Acevedo-Sueros pleaded guilty to four felony counts for conspiring to import >1,300 kg of cocaine and was sentenced in 2014.
The PSR calculated a Total Offense Level (TOL) of 34, including a two-level acceptance reduction under U.S.S.G. § 3E1.1(a); it did not mention the potential additional one-level reduction under § 3E1.1(b).
Defense did not object to the PSR, did not request the § 3E1.1(b) adjustment in the sentencing memorandum, and counsel agreed on the record that TOL was 34 at sentencing.
The district court sentenced Acevedo-Sueros to concurrent 151-month terms (low end of the 34/CHC I guideline range).
On appeal Acevedo-Sueros raised two procedural-reasonableness challenges: (1) entitlement to the extra one-level § 3E1.1(b) reduction despite no formal government motion, and (2) plain error based on the court’s failure to verify on the record that he and counsel had read and discussed the PSR under Fed. R. Crim. P. 32(i)(1)(A).

Issues

Issue	Acevedo-Sueros' Argument	Government's Argument	Held
Whether Acevedo-Sueros was entitled to the additional one-level reduction under U.S.S.G. § 3E1.1(b)	His timely guilty plea obviated trial preparation and thus satisfied § 3E1.1(b) (and an oral prosecutor remark sufficed as the government motion)	§ 3E1.1(b) requires a formal motion by the government; no such motion was made, and the prosecutor’s stray comment was not a formal motion	Court rejected Acevedo-Sueros’ claim: no formal government motion was made, the prosecutor’s comment was not a motion, and there was no indication the court misunderstood its authority or that government acted improperly; TOL = 34 affirmed
Whether the district court’s failure to verify on the record that defendant and counsel read and discussed the PSR (Rule 32(i)(1)(A)) requires vacatur under plain-error review	Failure to ask the defendant directly was prejudicial because it likely prevented discovery of § 3E1.1(b) and therefore increased the guideline range from level 33 to 34	Any omission did not affect substantial rights because there is no reasonable probability inquiry or government motion would have produced the § 3E1.1(b) reduction	Court held defendant failed to show prejudice under plain-error standard; even if error occurred, no reasonable probability of a different sentence; affirmed

Key Cases Cited

United States v. Olano, 507 U.S. 725 (discussing waiver vs. forfeiture and plain-error review)
United States v. Meléndez-Rivera, 782 F.3d 26 (1st Cir. 2015) (court may grant § 3E1.1(b) in rare cases when government withholds motion for unconstitutional reasons)
United States v. Beatty, 538 F.3d 8 (1st Cir. 2008) (recognizing exception where government withholding of motion lacks legitimate basis)
United States v. DeLeon, 704 F.3d 189 (1st Cir. 2013) (discussing better practice of directly verifying defendant reviewed PSR)
United States v. Mangual-Garcia, 505 F.3d 1 (1st Cir. 2007) (plain-error standard in sentencing context)
United States v. Gilman, 478 F.3d 440 (1st Cir. 2007) (prejudice requirement under plain-error review)
United States v. Aguasvivas-Castillo, 668 F.3d 7 (1st Cir. 2012) (declining to decide waiver when claim fails on merits)
United States v. Rodriguez, 311 F.3d 435 (1st Cir. 2002) (finding waiver where defendant consciously waived issue)
United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) (arguments perfunctorily raised may be forfeited)
United States v. Perretta, 804 F.3d 53 (1st Cir. 2015) (sentences within properly calculated Guidelines range are presumptively reasonable)
United States v. Torres-Landrúa, 783 F.3d 58 (1st Cir. 2015) (same)
United States v. Maldonado-Rios, 790 F.3d 62 (1st Cir. 2015) (district court lacks jurisdiction to reduce sentence under Amendment 782 while appeal pending)
Johnson v. Zerbst, 304 U.S. 458 (explaining concept of waiver vs. forfeiture)
Boston & Maine Corp. v. Town of Hampton, 7 F.3d 281 (1st Cir. 1993) (mandate marks end of appellate jurisdiction)