United States v. Santiago-Burgos
2014 U.S. App. LEXIS 7474
| 1st Cir. | 2014Background
- In April 2011 Efrain Santiago-Burgos pled guilty to a drug-conspiracy count involving multiple controlled substances and a protected location; plea agreement stipulated offense-level calculations and potential sentence recommendations tied to Criminal History Category (CHC).
- The plea agreement set a Base Offense Level and a three-level acceptance deduction, yielding a Total Offense Level of 29, and permitted Santiago to argue for 87 months if CHC I; the government could recommend 97 months if CHC I or II; neither side could recommend below 87 months.
- Santiago had a 2006 conviction for assaulting a DEA informant and was on supervised release when the instant offense occurred; his supervised release was later revoked and he received a 13-month revocation sentence.
- The PSR initially assigned four criminal-history points (CHC III) — two for the prior conviction and two pursuant to U.S.S.G. § 4A1.1(d) because the instant offense occurred while on supervised release — yielding a 108–135 month range.
- The district court sustained Santiago’s objection to the two points for the prior conviction (finding the assault was an overt act of the conspiracy) but denied the objection to the two supervised-release points, producing CHC II (97–121 months), sentenced Santiago to 97 months, to run consecutively to the 13-month revocation sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate waiver bars Santiago's appeal of sentencing errors | Waiver in plea agreement does not preclude appeal because court did not sentence "according to the agreement's terms" (Santiago lost bargained right to seek 87 months) | Waiver bars appeal because 97 months was an agreed possible outcome under CHC I or II | Waiver inapplicable; appeal allowed because CHC error deprived Santiago of an express plea-bargain benefit |
| Whether PSR's two §4A1.1(d) points (for committing offense while on supervised release) were properly assessed | The assault and related conduct were part of the conspiracy, so those points should be excluded | Government conceded error because district court excluded the prior-conviction points under the overt-act rule and same rationale applies to §4A1.1(d) points | Government conceded; court orders resentencing using CHC I (points removed) |
| Whether district court erred by imposing sentence consecutive to the revocation sentence instead of concurrent under U.S.S.G. §5G1.3(b) | Santiago argued the revocation conduct was relevant conduct and increased offense level, so §5G1.3(b) required concurrence | Government argued either §5G1.3(b) did not apply (no link between prior revocation conduct and the role adjustment) or subsection (c) allowed discretion for consecutive sentence | No plain error: §5G1.3(b) did not apply (no showing the revocation conduct caused the role adjustment); subsection (c) favors consecutive sentences in revocation contexts, so consecutive sentence affirmed |
| Remedy for Guideline miscalculation | Vacate and remand for resentencing under correct CHC I | Contended waiver would make error moot; alternatively urged affirmance of consecutive sentence | Vacated 97-month sentence and remanded for resentencing applying CHC I; consecutive-imposition affirmed |
Key Cases Cited
- Sotirion v. United States, 617 F.3d 27 (1st Cir. 2010) (appeal-waiver validity standards)
- United States v. McCoy, 508 F.3d 74 (1st Cir. 2007) (appeal-waiver scope and interpretation)
- United States v. Saxena, 229 F.3d 1 (1st Cir. 2000) (defendant entitled to the benefit of plea bargain)
- United States v. Carrasco-De-Jesús, 589 F.3d 22 (1st Cir. 2009) (requirements for §5G1.3(b) concurrent sentencing)
- United States v. Parks, 698 F.3d 1 (1st Cir. 2012) (consecutive sentences are default when revocation is involved)