Lead Opinion
This сase arises out of a now-familiar, large-scale FBI investigation known as “Operation Guard Shack,” in which the FBI, in an effort to root out police corruption throughout Puerto Rico, orchestrated a series of staged drug deals over the course of several years.
Although Rivera-Ruperto raises similar challenges in his appeals from the two separate trials, each trial was presided over by a different district judge. Thus, there are two cases on appeal, and we address the various challenges today in separate opinions.
For the reasons stated below, we affirm the district court.
OVERVIEW
We keep our summary of the facts brief for now, saving the specific details related to Rivera-Ruperto’s various challenges for our later discussion.
Rivera-Ruperto provided armed security during six Operation Guard Shack sham drug deals, which occurred on April 9, April 14, April 27, June 9, June 25, and September 16 of 2010.
The government charged Rivera-Ruper-to under three separate indictments (two on September 21, 2010 and one on September 23, 2010) for his illegal participation in the six sham drug deals.
Rivera-Ruperto’s case proceeded to trial after plea negotiations with the government failed — a point of contention that we get to shortly. For purposes of trial, the first September 21 indictment (which charged Rivera-Ruperto for the April 14, April 27, June 9, and June 25 deals) and the September 23 indictment (which charged him for the September 16 deal) were consolidated and tried together. A jury found Rivera-Ruperto guilty of all charges and the district judge sentenced him to 126-years and 10-months’ imprisonment. It is this first trial which is the topic of the present appeal. As we discuss in more detail below, Rivera-Ruperto takes issue both with the judge’s jury instructions and with the sentence he ultimately received.
Over defense counsel’s objections, the second September 21, 2010 indictment (which charged Rivera-Ruperto for his involvement in the transaction on April 9, 2010 only) was tried several months later before a different district judge. After a second jury found Rivera-Ruperto guilty on all counts, Rivera-Ruperto received a 35-year sentence of imprisonment.
Rivera-Ruperto, who is presently serving his combined sentence of 161 years and 10 months, now timely appeals. Putting aside, as we are required to do, whatever misgivings we might have as to the need for or the wisdom in imposing a near two-life-term sentence to punish a crime that involved staged drug deals, sham drugs, and fake dealers, we turn to the task of assessing whether any of Rivera-Ruperto’s legal arguments entitle him to relief. As we have already noted, we address only Rivera-Ruperto’s challenges from his first trial, saving those from the second for discussion in our separate, related opinion.
DISCUSSION
I. Lafler Motion
Rivera-Ruperto first challenges the district court’s denial of his claim that his
A. Background
About a month after Rivera-Ruperto was arraigned, the government made him an initial plea offer of 14 years that covered the charged offenses in all three indictments. Rivera-Ruperto’s first court-appointed attorney, Jose Aguayo (“Aguayo”), successfully negotiated that offer down to 12 years. When Rivera-Ruperto refused to take the 12-year deal, Aguayo attempted to negotiate an even lower sentence, but the prosecution told Aguayo that its 12-year offer was final.
Aguayo then showed Rivera-Ruperto the email, which spelled out the government’s final offer of 12 years, and explained to him the repercussions of not taking the plea deal. But Rivera-Ruperto rejected the offer still, and directed Aguayo to make a counteroffer of 8 years instead. Unsurprisingly, the government refused the 8-year counteroffer.
In a last-ditch effort, Aguayo joined defense attorneys for five other Operation Guard Shack defendants to attempt to negotiate a global plea deal for the six defendants as a group. The government responded to these overtures by renewing its 12-year offer for Rivera-Ruperto, but this time the offer had an expiration date. When Aguayo showed Rivera-Ruperto the renewed offer, Rivera-Ruperto, once again, rejected it. The offer lapsed on February 4, 2011. Accordingly, on February 7, 2011, the government filed an informative motion, in which it notified the court that plea negotiations had terminated and that a trial schedule needed to be set.
On that same day, Aguayo, apparently alarmed by Rivera-Ruperto’s behavior during their meetings regarding the plea negotiations, filed a request for a psychiatric exam for Rivera-Ruperto. In the motion, Aguayo stated that during their meetings, he had witnessed Rivera-Ruperto “exhibiting strange behavior which has progressively worsened,” and that Rivera-Ruperto “refuses to, or lacks the ability to appreciate the seriousness of his case, refuses to review the discovery material, appears to lose his lucidity, rants and raves, and vehemently argues with imaginary people in the attorney-client visiting room.” The district court granted the motion by electronic order.
Shortly after being examined in early June 2011, Rivera-Ruperto sent Aguayo an email, in which he stated that he wanted to take the (by then, already expired) 12-year plea offer. Aguayo responded by advising Rivera-Ruperto that the 12-year deal had timed out, and that they should await the results of the mental evaluation before resuming further plea negotiations. If he were to withdraw the request for the psychiatric examination before they saw the results, Aguayo explained, Rivera-Ruperto could later argue, even after accеpting an offer, that he had not been mentally competent to accept it after all.
When the results of the psychological exam came back in late June, the report deemed Rivera-Ruperto “stable” and contained no diagnoses for mental disorders that would affect Rivera-Ruperto’s competency to stand trial.
Aguayo met with Rivera-Ruperto to relay this information, making clear that this was their last chance to make a counteroffer, and that a proposal of less than 20 years would not be considered. Despite this advice, Rivera-Ruperto insisted that Aguayo make a counteroffer of only 13 years. Unsurprisingly, the government again rejected this lowball, but nevertheless made one final offer of 18 years. Rivera-Ruperto said no, and then proceeded to fire Aguayo. With plea negotiations over (this time for good), the case was slated for trial.
On March 23, 2012, nine months after the date of the psychological evaluation report and three days before trial was to begin, Rivera-Ruperto, through his second court-appointed attorney, filed a motion alleging that Aguayo had provided ineffective assistance of counsel at the plea-bargaining stage and asking the district court to Order the government to reoffer the 12-year deal. The district court granted Rivera-Ruperto’s request for an evidentiary hearing on the issue and, after hearing testimony from both Rivera-Ruperto and Aguayo and considering the documentary evidence,
B. Analysis
We review a district court’s determination of ineffective assistance of counsel claims de novo and any findings of fact for clear error. Ortiz-Graulau v. United States,
A defendant’s Sixth Amendment right to competent counsel extends to the plea-bargaining process. Lafler v. Cooper,
Rivera-Ruperto argues that he meets both of these prongs. He contends that he “wanted to accept the 12-year plea offer, and would have san§ his original defense counsel’s decision to seek an unnecessary psychological evaluation, his related erroneous advice, and his refusal to inform the government and the district Court of [his] decision [to accept the 12-
In order to meet the first Strickland prong, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland,
Here, none of Aguayo’s actions meets this standard. Aguayo sought a psychological exam only after he observed Rivera-Ruperto arguing with imaginary people and exhibiting other abnormal behavior. While ultimately the results of Rivera-Ruperto’s exam may have shown that Rivera-Ruperto did not have any mental health issues, given the erratic behavior Rivera-Ruperto displayed during their meetings, Aguayo’s motion was not “patently unreasonable.” Tevlin,
Nor do we think Aguayo’s performance was deficient on account of the fact that he advised Rivera-Ruperto to await the re-suits of the psychological exam before pursuing further plea negotiations. First, as we get to in a moment, by the time Rivera-Ruperto had emailed Aguayo to say he wished to take the 12-year plea offer, there was no actual offer for Rivera-Ruperto to take because the last 12-year deal had expired some three or four months prior. But even if there had been a live offer on the table, by the time Rivera-Ruperto expressed any interest in taking a 12-year plea deal, he had already been examined and was awaiting the results. As Aguayo explained to Rivera-Ruperto at the time, it was Aguayo’s professional judgment that withdrawing the motion for the psychological exam at that point would threaten the durability of any plea agreement they might have reached because Rivera-Ru-perto could later argue that he had not been mentally competent to enter into the deal at all. We think this advice was given in the exercise of reasonable professional judgment, and in any event, certainly was not so deficient as to fall below “an objective standard of reasonableness.” Strickland,
Moreover,- even if we were to assume the defective performance prong has been met, Rivera-Ruperto’s claim still fails because he cannot show the necessary prejudice to meet the second Strickland prong. In order to establish prejudice, a defendant claiming ineffective assistance at the plea bargaining stage must show that “but for the ineffective advice of counsel
Rivera-Ruperto argues that he would have accepted the 12-year deal but for Aguayo requesting an “unnecessary and unwanted” psychological exam and then refusing to withdraw the request after Rivera-Ruperto told Aguayo that he wished to accept the 12-year offer. But the facts simply do not bear out Rivera-Ruper-to’s theory that Aguayo’s actions are what prevented a 12-year plea deal from being presented to the court. When Rivera-Ru-perto emailed to tell Aguayo that he wanted to take the 12-year plea offer, it was already early June 2011. By that time, nearly four months had passed since the 12-year plea offer had expired. It was therefore not the requested psychological examination that caused Rivera-Ruperto to “lose” a 12-year plea deal, but the fact that he had already rejected the offer (more than once, we might add), leaving no deal on the table for Rivera-Ruperto to accept. Furthermore, even after the results came back from Rivera-Ruperto’s psychological exam and the government had labeled him a “malingerer,” Rivera-Ruperto had a final opportunity to accept an 18-year plea offer from the government. Rivera-Ruperto rejected even this offer and opted for trial. Rivera-Ruperto has thus failed to show that there is a reasonable probability that any plea deal, much less the 12-year plea deal specifically, would have been presented to the court but for Aguayo’s purported ineffective assistance.
Because Rivera-Ruperto has failed to show that Aguayo’s performance was defective, and because, even if we were to assume the performance was defective, Rivera-Ruperto has failed to show the requisite prejudice, we affirm the district court’s ruling on the Lafler claim.
II. Jury Instructions
Rivera-Ruperto raises on appeal only one challenge concerning the trial itself. He argues that the district court erred in failing to instruct the jury that it Was required to make its drug quantity findings beyond a reasonable doubt. We begin once more with a discussion of what happened below.
A. Background
After closing arguments were made, the trial judge gave jury instructions, beginning with general instructions, which explained that the prosecution had the burden “to prove guilt beyond a reasonable doubt.” The trial judge then instructed the jury on the elements of the crimes with which Rivera-Ruperto was charged.
As a reminder, among other charges, Rivera-Ruperto was indicted for each of the five drug deals with one count each of two drug crimes: conspiracy and attempted possession with intent to distribute a controlled substance. As they are the only instructions relevant to our inquiry today, we focus our attention on the judge’s instructions regarding drug quantity.
The judge instructed the jury as to the elements of the two drug offenses, and was explicit that in order to find the defendant guilty, the jury had to be convinced that the government had proven each element beyond a reasonable doubt. The judge did not include drug quantity among these elements, but after explaining the elements of the drug crimes, the judge did tell the jury: “If you find that the defendant conspired or attempted to possess with intent to distribute a controlled substance[,] ...
The trial judge referred to drug quantity one other time in his jury instructions. This was when he described the verdict forms to the jury, explaining: “[I]f you find [the] [defendant guilty, then you are also asked to provide the amount of drugs involved in said count. And there’s a question for you to find that.”
■ Rivera-Ruperto’s trial attorney raised no objections to the jury instructions. After deliberations, the jury returned a verdict in which it found Rivera-Ruperto guilty of all charges. With respect to the drug-related offenses, the jury found Rivera-Ruperto guilty “[i]n the amount of five kilograms or more” for each of the counts, with the exception of the attempted possession count for the September 16 deal, for which the jury did not return a drug quantity finding.
At sentencing, the district court imposed a sentence for these drug convictions that was based on the jury’s drug quantity findings. Specifically, because the jury had found that all of Rivera-Ruperto’s drug offenses (except the September 16 attempted possession count) involved 5 kilograms or more of a controlled substance, the court imposed concurrent sentences of 21-years and 10-months’ imprisonment for each of these convictions.
On appeal, Rivera-Ruperto argues that he is entitled to a new trial because the district court failed to instruct the jury that it was required to find the drug quantities beyond a reasonable doubt.
B. Analysis
We typically review jury instruction challenges de novo, but where, as here, a defendant failed to object to the jury instructions below, our review is for plain error. United States v. Delgado-Marrero,
Reversal under the plain error standard requires: (1) that an error occurred; (2) that the error was obvious; (3) that it affected the defendant’s substantial rights; and (4) that it threatens the fairness, integrity or public reputation of the proceedings. Delgado-Marrero, 744 F.3d at
We begin with the question of error. To satisfy plain error review, we must conclude not only that the district court erred in not instructing the jury that it was required to find drug quantity beyond a reasonable doubt, but that the error was obvious.
The Supreme Court has held that facts such as drug quantity are to be considered elements of the offense and must be found beyond a reasonable doubt if those facts “increase the penalty for a crime beyond the prescribed statutory maximum,” Apprendi v. New Jersey,
In United States v. Barbour,
Likewise, here, although the judge never instructed the jury that it was required to make its drug quantity findings beyond a reasonable doubt (though, we stress, he should have), he correctly submitted the drug quantity question to the jury, instructed the jury more than once as to the government’s beyond-a-reasonable-doubt burden, and instructed the jury that if it found Rivera-Ruperto guilty of a drug offense, it would also be required to make a drug quantity finding. Furthermore, on the verdict form, after each question that asked whether the jury found Rivera-Ru-perto “guilty” or “not-guilty” of a drug-related offense, a question directing the jury to make a multiple-choice finding as to drug quantity immediately followed. Thus, the “link between the burden of
In arguing that the district court nonetheless committed plain error, Rivera-Ru-perto relies on Delgado-Marrero, a case in which, applying plain error review, we remanded for resentencing on the basis of an Alleyne error.
By contrast, here, as we have already noted, drug quantity was submitted to the jury in the initial jury instructions and on the verdict form, and the court explicitly instructed the jury that the government was required to prove its case beyond a reasonable doubt. Therefore, Rivera-Ru-perto has not cleared the obvious-error hurdle.
■ Moreover, even if we assumed that the district court’s error was obvious and that it affected the defendant’s substantial rights,
At trial, the government showed the jury video footage from each of the charged drug deals of a confidential informant weighing the bricks of sham cocaine, and then Rivera-Ruperto placing each brick into a suitcase. The same confidential informant also testified on the stand as to the number of kilograms of sham cocaine that were used during each deal. No conflicting evidence emerged at trial that might have possibly called into question the government’s drug quantity evidence, and Rivera-Ruperto does not provide any argument on appeal as to how we might conclude that, given the evidence presented, any error on the district court’s part threatened the fairness, integrity, or public reputation of his trial.
Let us be clear: we think the district court’s jury instructions were flawed, and
III. Sentencing Challenges
Rivera-Ruperto’s remaining two arguments are challenges to his sentence. He argues that the government engaged in improper sentencing manipulation when it set up the sting operation, and also that his resulting combined sentence between the two trials of 161 years and 10 months violated the Eighth Amendment’s prohibition on cruel and unusual punishment. We begin for a final time by recounting what happened below.
A. Background
At the beginning of Rivera-Ruperto’s sentencing hearing, defense counsel raised the issue of sentencing manipulation, arguing that the FBI had arbitrarily chosen to use “large” amounts (more than 5 kilograms) of sham cocaine for the sole purpose of enhancing Rivera-Ruperto’s sеntencing exposure. Defense counsel argued that, for each of the staged drug transactions, the elements of the charged offenses would have been fulfilled with lesser amounts of sham cocaine, and that the FBI’s decision to use the 8-kilogram, 12-kilogram, and 15-kilogram quantities could only have been for purposes of “mere sentencing enhancement.”
Defense counsel also argued that the government’s charging practices constituted impermissible sentencing manipulation because the series of five drug deals could have been charged as a single drug conspiracy, in which case Rivera-Ruperto would have been convicted of just one count, of possession of a firearm in violation of 18 U.S.C. § 924(c), an offense that carries with it a mandatory minimum sentence of 5 years imprisonment, id. § 924(c)(1)(A). Instead, the government chose to charge each drug deal as a separate transaction, counsel contended, fully knowing that each “second or subsequent” conviction under the subsection carries with it a mandatory minimum sentence of 25 years imprisonment, id. § 924(e)(l)(C)(i), which must be served consecutively, id. § 924(e)(l)(D)(ii). As a result, Rivera-Ruperto’s sentencing exposure in the first trial was 105-years imprisonment for the firearms convictions alone.
The government argued that there had been no improper conduct on its part. Each staged drug deal had in fact been a separate event, involving varying amounts of sham cocaine. And Rivera-Ruperto had decided each time to participate voluntarily, without regard to the amount involved.
After hearing from both sides, the district court, without making an explicit ruling on the sentencing manipulation argument, imposed the following sentence. For all but one of the drug convictions, the district court sentenced Rivera-Ruperto to concurrent 21-year and 10-month terms of imprisonment.
As for the other firearms counts, the district court imposed a 105-year sentence based on the mandatory 5-year minimum term for the first conviction under 18 U.S.C. § 924(c), and four consecutive 25-year mandatory minimum terms for the four subsequent § 924 convictions. In total, Rivera-Ruperto was sentenced to 126-years and 10-months’ imprisonment from the first trial.
Rivera-Ruperto was then also convicted of all counts at his second trial, and the second judge imposed a sentence of 35-years’ imprisonment, to be served consecutively to his first sentence. This brought Rivera-Ruperto’s combined sentence for his participation in six fake drug deals to 161-years and 10-months’ imprisonment.
Rivera-Ruperto now appeals the sentencing manipulation issue and raises an Eighth Amendment challenge to the total length of his sentence.
B. Sentencing Manipulation
Sentencing factor manipulation occurs “where government agents have improperly enlarged the scope or scale of [a] crime.” United States v. Lucena-Rivera,
Rivera-Ruperto begins his sentencing manipulation appeal by arguing that the district court neglected to address his properly-raised sentencing manipulation objection at all, and that this alone constitutes clear error and warrants reversal. We address this threshold argument first.
It is true that the sentеncing hearing transcript reflects that the district court never made an explicit ruling on Rivera-Ruperto’s sentencing manipulation objection. However, the transcript also plainly indicates that at the hearing, the judge invited defense counsel to make any statements he wished. After defense counsel argued the sentencing manipulation issue, the judge thanked him, acknowledging that he had heard the argument, and then, after allowing Rivera-Ruperto himself to speak, invited the government to respond. The judge gave the government ample timé to argue the sentencing manipulation issue as well, and then thanked the government lawyer before imposing the sentence.
Based on the transcript, we think it evident that the judge effectively denied the sentencing manipulation objection when he chose not to deviate from the statutory mínimums in sentencing Rivera-Ruperto for his crimes. This appears to have been clear enough to defense counsel as well, because counsel raised no objection and asked for no clarification as to the judge’s ruling on the sentencing manipulation issue, even when the judge invited counsel to speak after he imposed the sentence.
Because “[b]y definition, there is an element of manipulation in any sting operation,” we reserve relief for sentencing factor manipulation only for “the extreme and unusual ease,” Lucena-Rivera,
Here, Rivera-Ruperto argues, as he did below, that the government engaged in sentencing manipulation by using unnecessarily high quantities of sham drugs during the deals, by requiring Rivera-Ruperto to bring a firearm with him to each of the deals, and then by allowing him to participate in a “seemingly endless” number of those deals.
But Rivera-Ruperto has not met his burden to show by a preponderance of the evidence that the government’s motivations were indeed improper. At trial, FBI agents testified that the government used large quantities of sham cocaine for the purpose of ensuring that the staged deals looked realistic enough to warrant the need for armed security. Although it is certainly feasible that, as Rivera-Ruperto argues, the agents could have used some lesser quantity of drugs and still made the deals look realistic, the mere fact that they did not, without more, does not establish that the agents engaged in the kind of “extraordinary misconduct,” United States v. Sánchez-Berríos,
Likewise, it was a part of the sting operation’s design from the get-go that Operation Guard Shack would “hire” corrupt law enforcement officers to provide armed security at the staged drug deals, and that those officers would then, in turn, be asked to recruit others to participate in subsequent deals, thereby unwittingly assisting the sting in ferreting out additional corrupt officers.
Moreover, these same arguments have already been attempted and lost by other Operation Guard Shack defendants. See Navedo-Ramirez,
C. Eighth Amendment
Rivera-Ruperto’s final argument on appeal is an Eighth Amendment challenge to his sentence. Rivera-Ruperto argues that his combined sentence between the two trials for 161-years and 10-months’ imprisonment constitutes cruel and unusual punishment. We assume, favorably to Rivera-Ruperto, that this Eighth Amendment argument was properly preserved, and review his challenge de novo.
Let us begin by acknowledging that Rivera-Ruperto’s 161-year and 10-month sentence is indeed extraordinarily long. But in order to deem it constitutionally infirm under the Eighth Amendment’s cruel and unusual punishment clause, there are three criteria we must assess: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” United States v. Polk,
To quickly sketch out the underpinnings for Rivera-Ruperto’s sentence once more, of the combined 161 years and 10 months to which Rivera-Ruperto was sentenced, the lion’s share of the sentence — 130 years to be exact — was the result of minimum sentences required by statute for
In noncapital cases, the Eighth Amendment “does not require a precise calibration of crime and punishment.” United States v. Graciani,
The dissent here argues that in those cases where the Supreme Court has upheld harsh sentences for seemingly minor crimes, the Court’s rationale was justified because thе offenders were recidivists and recidivism is a legitimate basis on which a legislature can elect to sentence more harshly. However, we see no reason why recidivism may be deemed such a legitimate basis, but crimes involving the combination of drugs and weapons — like those targeted by the § 924(c) stacking regime— may not also be deemed a legitimate basis. To the contrary, “[t]he Supreme Court has noted that the ‘basic purpose’ of § 924(c) is ‘to combat the dangerous combination of drugs and guns’ ” and “has also noted that ‘the provision’s chief legislative sponsor ... said that the provision seeks to persuade the man who is tempted to commit a Federal felony to leave his gun at home.’ ” United States v. Angelos,
Defendants have a particularly difficult time passing through the proportionality principle’s narrow channel where the sentence is the result of a statutory mandate. This is because courts are required to give deference to the judgments of the legislature in determining appropriate punishments, and must “step softly and cede a wide berth to the Legislative Branch’s authority to match the type of punishment with the type of crime.” Polk,
At oral argument, counsel for Rivera-Ruperto argued that we should be swayed by the fact that, in this case, the crime involved fake drug deals. A near two life-term punishment where no real drugs and no real drug dealers were involved, he contended, is a punishment that is grossly disproportionate on its face. But in coming to this sentence, the judge below was guided by and correctly employed a sentencing scheme that is written into statute — a statute that makes no distinction between cases involving real versus sham cocaine. At each of the six stings, in fact, Rivera-Ruperto repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers. The crime of possessing a firearm in furtherance of such a drug trafficking offense is a grave one, and Congress has made a legislative determination that it requires harsh punishment. Given the weight of the case law, we see no Eighth Amendment route for second-guessing that legislative judgment.
We thus cannot conclude that Rivera-Ruperto has established that his sentence, which is largely due to his consecutive sentences under § 924(c), is grossly disproportionate to the crime, so as to trigger Eighth Amendment protections.
Our job now finished, we affirm for the reasons we have statéd above. A second opinion, in which we address Rivera-Ru-perto’s separate challenges as to his second trial, issues herewith.
Notes
. See, e.g., United States v. Navedo-Ramirez,
. Co-defendants Miguel Santiago-Cordero and Daviel Salinas-Acevedo were tried along with Rivera-Ruperto at his second trial, and we address their challenges in our companion decision as well.
.Although Rivera-Ruperto was not a police offiсer, he was invited to participate in Operation Guard Shack after he misrepresented himself to the FBI's confidential informant as a prison corrections officer.
. Among those Rivera-Ruperto recruited, at least one was a police officer.
. On September 21, 2010, Rivera-Ruperto was indicted for his participation in the April 14, April 27, June 9, and June 25, 2010 deals. On the same day, the government separately indicted Rivera-Ruperto for his participation in the April 9, 2010 deal. Superseding indictments were later filed, but the charges remained the same. Rivera-Ruperto was then indicted a third time on September 23, 2010 for his participation in the final September 16, 2010 deal.
. The report also suggested that Rivera-Ru-perto may have been exaggerating psychiatric impairment.
. Although the documents themselves are not in the record, the transcript from the Lafler hearing indicates that the parties’ submissions included email correspondence between Aguayo and the government regarding plea negotiations, Aguayo’s records containing detailed notes of his visits and conversations with Rivera-Ruperto, and a document signed by Rivera-Ruperto memorializing his refusal to accept the government's original "final” 12-year plea offer.
. Rivera-Ruperto appears to limit his deficient-performance argument to these bases, and does not challenge the district court’s finding that Aguayo otherwise competently made efforts to get lesser plea deals for his client and adequately explained how the plea bargaining process worked. •
. In fact, "where there are substantial indications that the defendant is not competent to stand trial, counsel is not faced with a strategy choice but has a settled obligation ... under federal law ... to raise the issue with the trial judge and ordinarily to seek a competency examination.” Robidoux v. O'Brien,
.The verdict forms (there were two bеcause there were originally two indictments that were consolidated for trial) asked the jury to mark whether it found Rivera-Ruperto "Guilty” or "Not Guilty” for each of the charged counts. Underneath the drug related counts, the verdict form asked the following question:
If you find the defendant guilty, please answer the following additional question:
Do you find that the amount of fake cocaine involved in that offense was (circle one):
A. 5 kilograms or more
B. At least 500 grams but less than 5 kilograms
C.Less than 500 grams
. Although the jury found Rivera-Ruperto guilty of that count, it left the corresponding drug quantity question blank on the verdict form.
. For the September 16 attempted possession conviction, for which the jury had returned no drug quantity finding, the district court imposed the maximum statutory sentence of 20 years for offenses involving an indeterminate quantity of drugs. See 21 U.S.C. § 841(b)(1)(C).
. For all but one of Rivera-Ruperto's convictions, the jury’s drug quantity finding triggered enhanced mandatory minimum sentences and resulted in sentences that exceeded the statutory maximum sentence for undetermined drug quantities. Thus Rivera-Ruperto’s substantial rights would have been affected had the jury instructions been obviously erroneous, and Rivera-Ruperto would have met plain error review’s third prong.
. Reminder: the jury convicted Rivera-Ru-perto of one count of conspiracy and one count of attempted possession for each of the five drug deals, and found for each count (except for the September 16 attempted possession count) that 5 kilograms or more of sham cocaine were involved.
. The judge asked, "That is the sentence of the Court. Anything else, Counsel?” Defense counsel responded by requesting abatement for the special monetary assessment (which the judge granted), but did not bring up the sentencing manipulation issue again.
. In his brief, Rivera-Ruperto appears not to reprise the argument, which he raised below, that the prosecution's charging practices (specifically, its decision to charge the five drug deals separately аs opposed to as a single conspiracy) constituted impermissible sentencing manipulation. To the extent that counsel alluded to this issue at oral argument, absent exceptional circumstances, we generally consider as waived issues raised only at oral argument. See United States v. Vazquez-Rivera,
. As we have already noted, Rivera-Ruperto was not himself a police officer (and turned out not even to be a prison corrections officer, as he had' originally claimed), but among those co-defendants that he recruited to participate in subsequent Operation Guard Shack deals, at least one was an officer in the Puerto Rico Police Department.
. The government makes no argument whatsoever in its brief in this first appeal as to what standard of review applies, but it argues in its brief in Rivera-Ruperto's second appeal that Rivera-Ruperto's Eighth Amendment claim was not properly preserved below, and that plain error review applies. For his part, Rivera-Ruperto does not discuss the standard of review in either opening or reply brief in either appeal.
On our read of the record, at least when it comes to his first sentence, Rivera-Ruperto probably did enough to preserve an Eighth Amendment challenge. At the first sentencing hearing after the first trial, counsel for Rivera-Ruperto argued that the prescribed statutory mínimums had resulted in a punishment that “goes way over, substantially way over, what’s necessary for punishing these offenses,’’ and resulted in a “horribly, horribly increased sentence which borderlines on draconian.” No similar arguments were made at Rivera-Ruperto's second sentencing, but for our purposes today, we will apply the defendant-friendly de novo standard to Rivera-Ru-perto’s challenge to his combined sentence.
. As for the rest of Rivera-Rupertp’s term of imprisonment, as we have already explained, 21 years and 10 months of the sentence were the result of all the remaining convictions from the first trial, and 10 years of the sentence were from the remaining convictions from the second trial.
. In other words, Rivera-Ruperto does not argue that we could somehow find that the remaining 31 years and 10 months resulting from his other convictions were, by themselves, grossly disproportionate to the crimes for which they were imposed.
. Because Rivera-Ruperto fails to establish that his sentence is grossly disproportionate, we need not reach the last two criteria — a comparison of his sentence with sentences received by other offenders in the same jurisdiction or a comparison of his sentence with sentences imposed for the same crime in other jurisdictions. Nevertheless, we note that in comparing Rivera-Ruperto's sentence, the dissent relies largely on the rationale of Judge Cassell in United States v. Angelos,
The court's role in evaluating § 924(c) is quite limited. The court can set aside the statute only if it is irrational punishment without any conceivable justification or is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment. After careful deliberation, the court reluctantly concludes that it has no choice but to impose the 55 year sentence. While the sentence appears to be cruel, unjust, and irrational, in our system of separated powers Congress makes the final decisions as to appropriatе criminal penalties. Under the controlling case law, the court must find either that a statute has no conceivable justification or is so grossly disproportionate to the crime that no reasonable argument can be made [on] its behalf. If the court is to fairly apply these precedents in this case, it must reject [the defendant’s] constitutional challenges.
Angelos,
Similarly, we cannot find that the sentence imposed pursuant to § 924(c) has no conceivable justification or is so grossly disproportionate that no reasonable argument can be made on its behalf. However unfair we may deem the life sentence here, we cannot say that the Constitution forbids it.
Dissenting Opinion
(Dissenting).
The majority today affirms a sentence of 160 years and one month without the possibility of parole for Rivera-Ruperto. The transgression for which Rivera-Ruperto was punished in such an extreme manner was his participation as a security guard in several fake transactions, while the FBI duped Rivera-Ruperto into believing that the composite was actually illegal drugs. The FBI ensured that more than five kilograms of composite moved from one agent’s hands to another at each transaction; the FBI also made sure that the rigged script included Rivera-Ruperto’s possession of a pistol at each transaction. This combination — more than five kilograms of composite, a pistol, and separate transactions — triggered the mandatory consecutive mínimums of 18 U.S.C. § 924(c), which make up 130 years of Rivera-Ruperto’s sentence.
In a real drug transaction, all participants would be guilty of a crime. And, in general, the greater their knowledge of the crime would be, the harsher the law would punish them. In the fictitious transaction we are faced with today, however, only the duped participants, who had no knowledge of what truly transpired, are punished. The other participants are not only excused, but indeed rewarded for a job well done.
If Rivera-Ruperto had instead knowingly committed several real rapes, second-degree murders, and/or kidnappings, he would have received a much lower sentence; even if Rivera-Ruperto had taken a much more active role in, and brought a gun to, two much larger real drug deals, he would still have received a much lower sentence.
I. The Eighth Amendment
The Court’s cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categоrical restrictions on the death penalty. In the first classification the Court considers all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive.
Graham v. Florida,
The second classification has evolved to encompass not only the death penalty, but also prison sentences. See id. at 61-62, 82,
In the present case, this court is faced with a challenge that falls under the first classification: a challenge to the length of Rivera-Ruperto’s sentence based on the circumstances of his case; in other words, an as-applied constitutional challenge to the length of Rivera-Ruperto’s sentence.
The Supreme Court’s jurisprudence in this first classification is animated by the principle of proportionality in punishment, as well as by deference to the legislature’s judgment as to what punishment is merited.
A. Proportionality
The principle of proportionality is deeply embedded into the very roots of our legal system. Solem v. Helm,
The principle of proportionality is not merely of historical intеrest, however. In that same case, the Court went on to observe that “[t]he constitutional principle of proportionality has been recognized explicitly in this Court for almost a century.” M. at 286,
The Supreme Court has continued to recognize that prison sentences must be proportional under the Eighth Amendment in every case that has dealt with that question since Solem.
B. Deference to the Legislature
The same case law is also clear that respect for the judgment of the legislature as to what constitutes appropriate punishment is in order. See, e.g., Solem,
C. The Three-Step Analysis
Thus it is clear that proportionality is of crucial importance in our sentencing law, but its “precise contours ... are unclear”. Lockyer,
1. The Three Steps
The controlling opinion in Harmelin explained its approach for determining whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime. A cоurt must begin by comparing the gravity of the offense and the severity of the sentence. ‘[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality’ the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis Validated] an initial judgment that [the] sentence is grossly disproportionate,’ the sentence is cruel and unusual.
Graham,
2. Actual Severity of the Offense and of the Punishment
In performing the three-step analysis, the Supreme Court has considered the actual severity of the acts committed by defendants, as well as the importance of the laws they violated. See, e.g., Ewing,
Similarly, the Supreme Court has been clear that for the purposes of the three-step analysis, courts must look to the actual severity of the penalty — that is, the actual amount of time a defendant will serve in prison — and not to what his penalty is called.
[The defendant’s] present sentence is life imprisonment without possibility of parole.... Helm will spend the rest of his life in the state penitentiary. This sentence is far more severe than the life sentence we considered in Rummel v. Estelle. Rummel was likely to have been eligible for parole within 12 years of his initial confinement, a fact on which the Court relied heavily.
Solem,
The Supreme Court reaffirmed this approach in 2012, its most recent pronouncement on the issue:
The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole.... State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature оf his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate.
Miller,
3. Recidivism
The Supreme Court has upheld several harsh sentences for seemingly relatively minor crimes. The Supreme Court reasoned that the severity of these sentences was justified because they involved recidivist offenders and recidivism was a legitimate basis on which a legislature could elect to sentence more harshly. For instance, in Rummel v. Estelle, the Supreme Court upheld a sentence of life with the possibility of parole for obtaining $120.75 under false pretenses, but reasoned that:
Moreover, given Rummel’s record, Texas was not required to treat him in the same manner as it might treat him were this his first “petty property offense.”Having twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.
The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.
Rummel,
In Ewing, to use another example, the Supreme Court devoted an entire section of its opinion to explaining that the defendant’s sentence of 25 years to life for stealing three golf clubs under California’s three strikes law must be understood in the context of recidivism, and explained: “California’s justification is no pretext. Recidivism is a serious public safety concern in California and throughout the Nation.” Ewing,
Indeed, of the seven cases that address as-applied proportionality challenges under the Eighth Amendment, five deal with recidivist offenders.
II. Discussion
A. Three-Step Test
Rivera-Ruperto’s case has no difficulty clearing the first step of the three-step analysis, in which “[a] court must begin by comparing the gravity of the offense and the severity of the sentence. ‘[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross dispro-portionality’ the court should then [proceed to the second step of the analysis].” Graham,
Rivera-Ruperto’s case also has no trouble passing the second step, namely a comparison of “the defendant’s sentence with the sentences received by other offenders in the same jurisdiction.” Graham,
If one approaches the analysis under this second step from another angle, one arrives at the same conclusion. That is, if one looks to offenses far graver than those Rivera-Ruperto committed, one finds that they carry far less severe sentences than Rivera-Ruperto’s. In sentencing to a mandatory term of 55 years a defendant who had committed three offenses under § 924(c), Judge Cassell compiled a table of
[ajmazingly, [the Defendant’s] sentence under § 924(c) is still far more severe than criminals who committed, for example, three aircraft hijackings, three second-degree murders, three kidnappings, or three rapes.... [Defendant] will receive a longer sentence than any three-time criminal, with the sole exception of a marijuana dealer who shoots three people. ([The defendant] still receives a longer sentence than a marijuana dealer who shoots two people.)
Id. at 1246.
Similarly telling is a comparison to the federal three-strikes provision, 18 U.S.C. § 3559(c). This statute mandates that a court impose a sentence of LWOP on a criminal with two prior serious violent felony convictions when this criminal commits a third such offense — but such an offender can then be released at age 70 if he has served at least 30 years in prison under 18 U.S.C. § 3582(c)(1), the so-called “compassionate release clause.” That is, if Rivera-Ruperto had committed a violent felony, been convicted, then committed a second violent felony, then been convicted again, and then committed a third violent felony, and been convicted yet again, he — even though a seemingly incorrigible recidivist — would have been eligible for release at age 70. As a first-time offender sentenced under § 924(c), however, Rivera-Ruperto will never be eligible for release.
B. Additional Observations
The analysis could stop here. But because this is such a rare case, a few additional observations are in order.
1. Direct Comparison to Other Cases
A direct comparison of Rivera-Ruperto’s offense and its sentence to offenses and their sentences that the Supreme Court held constitutional is enlightening. There are five such cases. See supra, Section I.C.3. Four of these cases involve recidivists — and the Supreme Court weighed the recidivism heavily in its proportionality analysis. See id. The fifth case involved a career criminal, another important factor in determining the appropriate sentence. See id. However, Rivera-Ruperto is neither a recidivist nor a career criminal. He is a first-time offender who has not led a life of crime. I therefore place his crime on one side of the scales — without adding the weight of recidivism or a career of crime— and his sentence on the other. And the weight of the sentence dwarfs the weight of his offense.
Such a direct comparison also holds if the present case is compared to cases from other сircuits. The Government, in its 28j letter, has provided this court with eleven eases of sentences from 55 to 186 years given under § 924(c).
• Seven bank robberies (in four of which a firearm was brandished) by “a repeat bank robber whose criminal record reflects a life of violent crime interrupted only by terms of imprisonment.” Arrington,159 F.3d at 1073 .
• A defendant who “was convicted of six separate robberies, each of which involved the brandishing of a firearm.” Watkins,509 F.3d at 283 . Although a first-time offender, the defendant “and/or his accomplices entered the homes of victims by force and threatened to seriously harm or kill not only the victims, but, in multiple cases, their spouses and small children.” Id.
• Defendants who were involved in the planning of the terrorist attack on 9/11 and who were convicted on “various counts related to a conspiracy to wage armed conflict against the United States and a conspiracy to wage armed conflict against a country with whom the United States is at peace.” Khan,461 F.3d at 483 .
Thus, the Government confirms that when long sentences are applied to serious offenses by recidivists, career criminals, or terrorists, the Eighth Amendment does not protect the offenders, for the severe punishment is not grossly disproportionate to the grave crimes. But Rivera-Ruperto is a first-time offender; he is no career criminal; and he is no terrorist. Note that even in the case of recidivist, but minor, offenses, the punishment may violate the Eighth Amendment. See Ramírez v. Castro,
2. Penological Goals
There is also a suggestion in the case law that courts may consider penological goals in their analysis, specifically: deterrence, retribution, rehabilitation, and incapacitation. Ewing,
This analysis of penological goals highlights another facet of the present case that deserves pause. Rivеra-Ruperto’s offenses involved a sham drug transaction, at which sham drugs were transacted. “Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution.” Ewing,
3. The Legislature’s Judgment
The three-step analysis already incorporates due respect for the judgment of the legislature as to the severity of penalties, and, as shown above, Rivera-Ruperto’s case passes that analysis. Because the judgment of the legislature deserves great deference, however, it is worth pointing out that, on the particular facts of this case, I am not questioning the judgment of the legislature. Rather, § 924(c), as the late Chief Justice Rehnquist pointed out, presents a good example of “unintended consequences” of legislative action.
III. Conclusion
The present case is “hen’s-teeth rare”. Polk,
The Government has effectively asked this court to pronounce the Eighth Amendment dead for sentences for a term of years. I respectfully refuse to join in this pronouncement. “Unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.” Graham,
. See, e.g., United States v. Carlos Cruz,
. See infra Section II.A. Although § 924(c) has rightly been the subject of much scathing criticism, the statute as such is not the focus of this dissent. See, e.g., Judge Paul Cassell, Statement on Behalf of the Judicial Conference of United States from U.S. District Judge Paul Cassell before the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security,
.To wit: O'Neil v. Vermont,
. I here limit my consideration to non-capital cases, because capital cases fall within the second classification of Eighth Amendment proportionality challenges. Note, however, that in capital cases, the principle of proportionality certainly applies as well. See, e.g., Graham,
. This concurrence has since been described as "controlling.” Graham,
. Although the position that the Eighth Amendment does not contain a proportionality principle was occasionally raised, it never achieved a majority in the Supreme Court, and has been squarely rejected. See, e.g., Miller,
. The Court explicitly rejected the Governmеnt’s argument that the possibility of executive clemency made a sentence of life without the possibility of parole the same as a sentence of life with the possibility of parole. Id. at 303,
. To wit, Rummel, Hutto, Solem, Ewing, Lockyer.
. Judge Paul Cassell, Statement on Behalf of the Judicial Conference of United States from U.S. District Judge Paul Cassell before the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security,
. United States Sentencing Commission, 2011 Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 359 (2011).
. Id. n.903.
. See United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System, App. A (2011).
. Note that the statutes permit the death penalty for first degree murder. 18 U.S.C. § 1111. Because the statutes only mandate a sentence of LWOP and the death penalty is given only rarely, I include the statutes in the comparison. After all, the statutes reflect Congress’s judgment that first degree murder, without more — already a heinous offense far worse that Rivera-Ruperto’s — is adequately punished by LWOP.
. See also Angelos,
This possibility, too, is no mere hypothetical. This morning, the court had before it for sentencing Thomas Ray Gurule. Mr. Gurule is 54-years-old with a lifelong history of criminal activity and drug abuse. He has spent more of his life incarcerated than he has in the community. He has sixteen adult criminal convictions on his record, including two robbery convictions involving dangerous weapons. His most recent conviction was for carjacking. In August 2003, after failing to pay for gas at a service station, Mr. Gurule was pursued by the station manager. To escape, Mr. Gurule broke into the home of a young woman, held her at knife point, stole her jewelry, and forced her to drive him away from the scene of his crimes. During the drive, Mr. Gurule threatened both the woman and her family.
. Erik Luna and Paul Cassell, Mandatory Minimalism, 32 Cardozo L. Rev. 1, 16 (2010) ("Most drug and weapons crimes amenable to federal mandatory mínimums are actually prosecuted in state courts pursuant to state laws carrying much lower sentences.”) (emphasis added).
. Id. (“It is hardly disputed, however, that the possibility of severe punishment can influence the choice of whether to pursue a federal or state prosecution. For some, this prospect raises serious questions about the propriety of bringing charges in federal rather than state court, particularly where the prosecution is pursued, not because the case implicates a special national interest, but because it jacks up the potential punishment.”). See also Angelos,
.Craig S. Lerner, Who's Really Sentenced to Life Without Parole?: Searching for "Ugly Disproportionalities" in the American Criminal Justice System, 2015 Wis. L. Rev. 789, 792 (2015). See Ashley Nellis, Throwing Away the Key: The Expansion of Life without Parole Sentences in the United States, Fed. Sent’g.
. Id.
. To wit: United States v. Wiest,
. William H. Rehnquist, Luncheon Address (June 18, 1993), in U.S. Sentencing Comm'n., Proceedings of the Inaugural Symposium on Crime and Punishment in the United States, 286 (1993).
. Judge Paul Cassell, Statement on Behalf of the Judicial Conference of United States from U.S. District Judge Paul Cassell before the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security,