United States v. Tanco-Pizarro
873 F.3d 61
| 1st Cir. | 2017Background
- In 2006 Tanco-Pizarro was convicted for using a firearm in a drug crime and received 60 months plus five years supervised release. While on supervised release in 2015, police found him with an AK-47–style rifle, a Glock, and ammunition after an auto accident.
- He was sentenced to 60 months for the supervised-release violation and later pled guilty (Dec. 21, 2015) to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- The plea agreement stipulated a total offense level of 19 and set guideline ranges for criminal history categories I–III, expressly stated the parties did not stipulate any criminal history category, allowed the defendant to request a low-end sentence while permitting the government to argue for an upper-end sentence, and contained an appeal-waiver conditioned on being sentenced in accordance with the agreement.
- At plea colloquy the court explained the guideline recommendation was not binding, confirmed the waiver and that no other promises existed, and the defendant stated his plea was voluntary.
- The presentence report placed Tanco-Pizarro in Criminal History Category IV (GSR 46–57 months). At sentencing (Apr. 6, 2016) the court asked if he wished to allocute twice; he declined both times. The court imposed 57 months, to run consecutive to the revocation sentence.
- Tanco-Pizarro appealed, arguing (1) his plea was not knowing/voluntary because counsel promised a concurrent sentence or coerced him to plead; (2) the government breached the plea agreement by recommending 57 months when he says 46 was the contract cap; and (3) he was denied a meaningful right of allocution. The First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Voluntariness of plea (counsel promise/coercion) | Counsel promised in open court to seek a concurrent sentence and thus plea was induced; counsel coerced belief a concurrent sentence was likely | Record shows no firm promise by counsel; court informed defendant plea and sentencing not bound by promises; defendant affirmed no other promises | No plain error; plea was knowing and voluntary because no clear promise or improper inducement existed |
| Breach of plea agreement / appeal waiver | Government breached by recommending 57 months although plea contemplated a maximum 46-month recommendation; appeal waiver should not bar review | Plea stipulated offense level 19; agreement did not fix criminal-history category; waiver applies if sentenced in accordance with agreement; government’s recommendation within applicable GSR | Waiver applied; even if waiver excused, no plain error — recommendation consistent with stipulated offense level and no clear contractual breach |
| Right of allocution | Court’s tone and context (comments about inmate fight) made allocution invitation illusory | Court directly asked twice whether defendant wished to speak and earlier told him he could address the Court | De novo review: court complied with Rule 32(i)(4)(A)(ii); defendant twice declined to speak, so no violation |
Key Cases Cited
- Brady v. United States, 397 U.S. 742 (1970) (plea involuntary if induced by threats or improper promises)
- United States v. Vonn, 535 U.S. 55 (2002) (standard for challenging plea procedures on appeal)
- United States v. Puckett, 556 U.S. 129 (2009) (plain-error review for unobjected-to plea-agreement breaches)
- United States v. Marchena-Silvestre, 802 F.3d 196 (1st Cir. 2015) (interpreting ambiguous plea-agreement language about applicable guideline ranges)
- United States v. Almonte-Nunez, 771 F.3d 84 (1st Cir. 2014) (prosecutors held to meticulous standard in plea agreement performance)
- United States v. Pacheco, 727 F.3d 41 (1st Cir. 2013) (no requisite formulaic language for allocution; asking if defendant has anything to say suffices)
- United States v. Rivera-Rodriguez, 617 F.3d 581 (1st Cir. 2010) (de novo review of allocution right compliance)