UNITED STATES OF AMERICA, Appellee, v. JOSUE CANDELARIO-RAMOS, T/N JOSUE CANDELARIA-RAMOS, A/K/A POCHO, Defendant, Appellant.
No. 20-1988
United States Court of Appeals For the First Circuit
August 16, 2022
Thompson and Howard, Circuit Judges, and Woodcock, District Judge.*
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Fernando O. Zambrana Aviles, with whom Colon Serrano Zambrana, LLC was on brief, for appellant.
Maarja T. Luhtaru, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, and David C. Bornstein, Assistant United States Attorney, were on brief, for appellee.
* Of the District of Maine, sitting by designation.
I.
The parties do not dispute the underlying facts, which we draw from the plea agreement, the sentencing hearing transcript, and the uncontested portions of the presentence investigation report (“PSR“). See United States v. Gomera-Rodriguez, 952 F.3d 15, 16 (1st Cir. 2020). In July 2017 a grand jury charged Candelaria, alongside twenty-six co-defendants, for working as a seller in a drug operation based out of two public housing projects in Utuado, Puerto Rico. Candelaria was charged with one count of conspiring to possess with intent to distribute controlled substances and four counts of possession with intent to distribute heroin, cocaine, cocaine base, and marijuana.
In February 2019, pursuant to a written agreement, Candelaria pleaded guilty to one count of conspiracy to possess with
The plea agreement also stated that three of Candelaria‘s prior Puerto Rico convictions qualified as “relevant conduct,” and that his sentence would be imposed in accordance with
parties identified two violations of the Puerto Rico Controlled Substances Act and one violation of the Puerto Rico Penal Code. Candelaria served his sentences for those convictions concurrently for a total term of twenty months and twenty days, which ended in January 2017.
Candelaria‘s amended PSR calculated his criminal history as Category III with a total offense level of 25, resulting in a sentencing range of 70 to 87 months. At his sentencing hearing in September 2020, Candelaria requested a term of 60 months’ imprisonment minus the twenty months and twenty days he had previously served in the custody of the Commonwealth on his relevant conduct. The government explained that it had not been aware of “the Sentencing Commission‘s opinion in terms of credit that can and cannot be provided” and had “negotiated all the pleas under the [mistaken] understanding [that the co-defendants] were going to receive credit for the relevant conduct cases.” In response, the court explained that “whatever credit [Candelaria] has, [the court] cannot go under five years,” and confirmed that Candelaria‘s counsel understood that the court could not “go under the statutory minimum sentence.” Notwithstanding the parties’
apparent misunderstanding in reaching the plea agreement, Candelaria did not move to withdraw his guilty plea.
After reviewing the relevant sentencing factors, the court departed downward pursuant to
II.
We enforce an appeal waiver “if the defendant knowingly and voluntarily agree[d] to its terms and enforcement
or ethnicity at sentencing or “‘the imposition of a sentence exceeding the maximum penalty permitted by law.‘” Id. at 3 n.2 (quoting Teeter, 257 F.3d at 25 nn.9-10). “To successfully invoke the miscarriage of justice exception, a ‘garden-variety error will not suffice,’ rather there must be, ‘at a bare minimum, an increment of error more glaring than routine reversible error.‘” United States v. Santiago, 769 F.3d 1, 8 (1st Cir. 2014) (quoting United States v. Chambers, 710 F.3d 23, 31 (1st Cir. 2013)).
Candelaria states only that enforcing his appeal waiver “would work as a miscarriage of justice” because “he is launching a serious constitutional challenge to the limitations imposed by
justice. Candelaria has thus waived this argument. See Acevedo-Garcia, 351 F.3d at 561.
Even if Candelaria had not waived this argument, there is no miscarriage of justice here. Considering first his constitutional claim, Candelaria argues that “the distinction between discharged and undischarged terms of imprisonment in Guideline
the fairness, integrity, or public reputation of judicial proceedings.‘” Id. (quoting Duarte, 246 F.3d at 60). But Candelaria “makes no attempt to show how his [constitutional] claim satisfies the demanding plain-error standard--his brief fails to even mention plain error, let alone argue for its application here.” United States v. Cruz-Ramos, 987 F.3d 27, 40 (1st Cir. 2021) (citing Fed. R. App. P. 28(a)(8)(A)) (emphasis in original). His failure to do so “waives this claim.” Id.; see United States v. Galindez, 999 F.3d 60, 68 (1st Cir. 2019).6
In any event, there was no plain error. There are only two ways for a court to sentence below a statutory mandatory minimum. First, if a defendant provides substantial assistance the government may move for a below-minimum sentence pursuant to
18-19. Second, the court may sentence below a mandatory minimum if a defendant has been convicted of a qualifying drug trafficking offense and meets the requirements of the “safety valve” provision in
Some circuits have credited undischarged sentences towards mandatory minimums, “so long as the total of the time served and the reduced federal sentence equals or exceeds the statutory mandatory minimum period.” Ramirez, 252 F.3d at 519; see, e.g., United States v. Ojeda, 946 F.3d 622, 630 (2d Cir. 2020) (applying this approach); United States v. Ross, 219 F.3d 592, 595 (7th Cir. 2000) (same); United States v. Drake, 49 F.3d 1438, 1441 (9th Cir. 1995) (same); see also United States v. Moore, 918 F.3d 368, 371 (4th Cir. 2019) (discussing this approach). Candelaria urges us to adopt this method and extend it to his discharged sentences. But we have previously found this approach expressly inapplicable to discharged sentences. See Ramirez, 252 F.3d at 519. “The district court hardly could have committed plain error
by adhering to binding . . . precedent.” United States v. Gonzalez, 949 F.3d 30, 42 (1st Cir. 2020).
Candelaria‘s disparity claim also falls short. Candelaria asserts that his 60-month sentence is “substantially disparate” from those of three co-defendants who were subject to mandatory minimums yet received credit for discharged terms of imprisonment, resulting in sentences of time served. District courts must consider “the need to avoid unwarranted sentence disparities among defendants with similar
government” destroy a disparity claim, Romero, 906 F.3d at 211-12.
Candelaria points to three of his co-defendants who, like him, worked as sellers for the drug operation and pleaded guilty to the same count of the indictment that he did. But the similarities end there. Two of the co-defendants--Afanador and Benitez-Perosa--were sentenced by a different judge than Candelaria was, “a fact that makes [their] sentence[s] . . . less relevant.” United States v. Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (citing United States v. Saez, 444 F.3d 15, 19 (1st Cir. 2006)). The other co-defendant, Rivera-Rivera, stipulated to possessing a lesser amount of cocaine than Candelaria. Candelaria provides no information about their criminal histories, the circumstances of their plea agreements, or the particularities of the relevant conduct for which he claims they received credit. Without this information we cannot determine whether these co-defendants are relevant comparators, and Candelaria‘s disparity claim fails.7
In sum, Candelaria waived any argument that his appeal waiver creates a miscarriage of justice for lack of development. And even had he not, he cannot show that enforcement of the appeal waiver results in a miscarriage of justice because “[n]o error--garden variety or otherwise--invaded the proceedings here.” Santiago, 769 F.3d at 8.
III.
For the foregoing reasons, the appeal is dismissed.