UNITED STATES OF AMERICA, Appellee, v. HERMIN RODRIGUEZ-MONSERRATE, a/k/a Cano, a/k/a Canito. Defendant, Appellant.
Nos. 20-1905, 20-1907
United States Court of Appeals For the First Circuit
December 30, 2021
Hon. Francisco A. Besosa, U.S. District Judge
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Before Thompson, Kayatta, and Barron, Circuit Judges.
Arza Feldman, with whom Feldman and Feldman was on brief, for appellant.
Robert P. Coleman III, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, were on brief, for appellee.
I.
This case arises out of the following events. In 2019, law enforcement agents saw a gun and magazines on a ledge near a window to the apartment occupied by Rodriguez‘s romantic partner. The partner allowed agents to search her apartment while Rodriguez was present. During the search, agents found ammunition, marijuana, face masks, a radio scanner, and various gun holsters. Rodriguez was arrested and admitted that most of these items were his, though he denied owning the gun and associated magazines found on the ledge.1 Rodriguez further admitted that, at the time of his arrest, he had been convicted of a felony and was serving a term of supervised release.
At an in-person hearing in February 2020, Rodriguez pleaded guilty to the section 922(g)(1) charge pursuant to a plea agreement in which the parties agreed to seek a prison term of 30 months. The agreement specified that Rodriguez waived his “right to appeal any aspect of [the] case‘s judgment and sentence, including but not limited to the term of imprisonment . . . and conditions of supervised release” so long as his sentence did not exceed 37 months.
Rodriguez‘s sentencing hearing on the section 922(g)(1) conviction was scheduled to be held on the same day as the hearing on the government‘s request to revoke his supervised release. By the time those hearings were to occur, in August 2020, the COVID-19 pandemic had caused the United States District Court for the District of Puerto Rico to continue all in-person proceedings until October 2020. See Third Am. Order Continuing Civil & Criminal Proceedings, Misc. No. 20-0088 (GAG) (Aug. 25, 2020), ECF No. 21.2 Accordingly, the district court sought Rodriguez‘s consent to proceed via videoconference. The court obtained that consent in two ways. First, Rodriguez filed a motion “respectfully request[ing] th[e] court to take note of his consent and to hold the [sentencing] hearing via videoconference.” Second, at the start of the August 2020 proceedings, the court orally confirmed on the record that Rodriguez‘s “appear[ance] by video” was “voluntary” and that he “[did] not have to appear by video.” The court told Rodriguez that he could consent to appear by video for both his sentencing and revocation hearings. Rodriguez consented to conducting both hearings by videoconference.
The court sentenced Rodriguez on the section 922(g)(1) conviction to 37 months -- the upper bound of the guideline range. The district court also imposed as one of several conditions of supervised release a requirement that Rodriguez “shall complete his high school education.”
The court conducted Rodriguez‘s revocation hearing during the same videoconference pursuant to Rodriguez‘s earlier consent. The government sought a 10-month revocation sentence based on an estimated guideline range of 4-10 months, but the probation officer calculated the range to be 12-18 months. The court agreed with the probation officer and imposed an 18-month revocation sentence, to be served consecutive to the 37-month sentence for the section 922(g)(1) conviction.
During each hearing, Rodriguez asked the court to reconsider the pertinent sentence. The court denied each request.
Rodriguez now brings an array of challenges to both of his sentences.
II.
We begin with the revocation hearing and sentence. Unimpeded by his appeal waiver, which applies only to his sentence for the section 922(g)(1) conviction, Rodriguez raises two types of challenges to his revocation hearing and sentence. First, he argues that, notwithstanding his consent to proceed by videoconference, the district court erred in conducting the revocation hearing in that manner. Second, he argues that his revocation sentence was procedurally
A.
Rodriguez argues that the district court erred in conducting his revocation hearing via videoconference because doing so was impermissible under both
Rodriguez also briefly asserts that proceeding by videoconference “impacted his right to the effective and meaningful assistance of counsel.” Again, though, he made no claim below that the particular video format employed by the court impaired his ability to consult confidentially with his lawyer. Indeed, he does not dispute that the district court explained, “If you want to speak with your lawyer before I sentence you, or before I make a decision on your revocation, please let us know, and we will make arrangements for both of you to have a confidential communication.” Nor does Rodriguez develop on appeal any argument as to how the format plainly impaired his ability to receive the assistance of counsel. This argument is therefore both forfeited and waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.“); Pabon, 819 F.3d at 33-34.
B.
Rodriguez next attacks his revocation sentence on procedural and substantive grounds. These challenges also fail.
We begin with procedural reasonableness. Rodriguez does not direct our attention to any objection below that was “sufficiently specific to call the district court‘s attention to the asserted [procedural] error,” as required to preserve for appellate review an argument that a sentence is procedurally unreasonable. United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). We must therefore conclude that the argument was not preserved, and is subject to plain error review. Because Rodriguez does not attempt to satisfy that standard of review, his procedural reasonableness argument is waived on appeal. Pabon, 819 F.3d at 33-34.3
In contrast, Rodriguez preserved his substantive reasonableness challenge below by “advocat[ing] for a sentence shorter than the one ultimately imposed.” United States v. Garcia-Mojica, 955 F.3d 187, 194 (1st Cir. 2020) (quoting Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020)). We
therefore review for abuse of discretion the substantive reasonableness of the sentence. Id.
A sentence is substantively reasonable if it rests on “a plausible sentencing rationale” and reaches “a defensible result.” United States v. Cox, 851 F.3d 113, 120 (1st Cir. 2017) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)). The “universe of reasonable sentences” is “expansive.” Id. (quoting United States v. King, 741 F.3d 305, 308 (1st Cir. 2014)). And “[w]e have repeatedly emphasized that ‘[a] challenge to the substantive reasonableness of a sentence is particularly unpromising when the sentence imposed comes within the confines of a properly calculated [guideline range].‘” Id. at 126 (second alteration in original) (quoting United States v. Demers, 842 F.3d 8, 15 (1st Cir. 2016)).
Rodriguez‘s revocation sentence is substantively reasonable. The district court imposed a sentence within (albeit at the high end of) the probation officer‘s proffered guideline range, and Rodriguez does not argue that the range was improperly calculated. The district court also provided a plausible rationale for the sentence when it explained that Rodriguez‘s “new criminal conduct . . . has shown his serious disrespect for the law and his lack of commitment to make changes towards a pro-social reintegration into society.” The court determined “that a sentence at the high end of the guidelines [was] sufficient but not greater than necessary in this case” given Rodriguez‘s “noncompliance history and characteristics.”
On appeal, Rodriguez focuses on the district court‘s failure to address potentially mitigating evidence, including his “extremely difficult childhood,” his learning disability, and his responsibilities caring for his ailing mother. But this court “do[es] not require an express weighing of mitigating and aggravating factors or that each factor be individually mentioned.” United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012). We have upheld sentences imposed after the district court “ha[s] read the defense‘s sentencing memo and ha[s] heard the defense‘s leniency plea.” United States v. Davila-Bonilla, 968 F.3d 1, 12 (1st Cir. 2020). That is precisely what happened here. Further, the presentence investigation report -- which the court referenced before the revocation hearing -- described Rodriguez‘s childhood, his learning disability, and his mother‘s ill health/medical needs. So the fact “that the district court did not explicitly mention [mitigating factors] during the sentencing hearing suggests they were unconvincing, not ignored.” Lozada-Aponte, 689 F.3d at 793.
III.
Rodriguez also raises a host of challenges to his sentence on the section 922(g)(1) conviction for possessing ammunition. We begin with the question whether Rodriguez effectively waived his right to appeal that sentence.
A.
Rodriguez‘s plea deal contained the following provision:
Defendant knowingly and voluntarily agrees that, if the total term of imprisonment imposed by the Court is 37 months or less, the defendant waives the right to appeal any aspect of this case‘s judgment and sentence, including but not limited to the term of imprisonment or probation, restitution, fines, forfeiture,
and the term and conditions of supervised release.
Rodriguez signed the document containing this provision and, after consulting with his lawyer off the record, confirmed he understood that if the district court “sentence[d] [him] according to the terms, conditions, and recommendations contained in [his] plea agreement, [he] waive[d] and g[a]ve up [his] right to appeal [the] sentence and the judgment in the case.”
Rodriguez challenges his waiver as inadequate under
Rodriguez alleges that the district court failed to confirm that he “freely, knowingly and intelligently waived his right to appeal.” Rodriguez claims “eight discrete” errors with the court‘s inquiry: He argues that the court did not “explain the [waiver‘s] ramifications“; explain its meaning “in plain English“; explain that “the length of the sentence would be firm and final“; “question[] the defendant about his understanding of the waiver“; “ask[] the defendant if he had any questions about the waiver“; “ask[] the defendant if anyone had forced or coerced him to waive his right to appeal“; “advise[] the defendant that . . . he would be statutorily entitled to free counsel” if he proceeded to trial and appeal; or “specifically ask[] [Rodriguez] if he had discussed the appellate waiver with counsel.”
Through his objections, Rodriguez effectively describes his ideal plea colloquy. But while he is correct that
None of Rodriguez‘s complaints about this colloquy rises to the level of establishing error, plain or otherwise. Rodriguez‘s colloquy was quite similar to the one we upheld under a less deferential standard of review in United States v. De-La-Cruz Castro, 299 F.3d 5 (1st Cir. 2002). In that case, the court “asked Cruz Castro and his counsel if he knew ‘that by entering into this plea agreement and entering a plea of
Id. (alterations in original). We upheld the waiver in that case despite the district court‘s “indicat[ion] that [the defendant] could appeal ‘in some circumstances,‘” id. -- a potentially confusing qualification not given here.
At Rodriguez‘s in-person change-of-plea hearing, the prosecutor explained the plea agreement, including its “waiver of appeal which indicates that the Defendant knowingly and voluntarily agrees that if the total term of imprisonment is 37 months or less, the Defendant waives his right to appeal this case‘s judgment.” The court asked Rodriguez if he “agreed with the [prosecutor‘s] summary” of the agreement, and Rodriguez said “Yes.” The court then confirmed that Rodriguez‘s counsel had “explain[ed] the plea agreement” to Rodriguez “[w]ord for word” “in Spanish,” and that counsel was “satisfied that [Rodriguez] underst[ood] it.” Rodriguez then confirmed that he understood the plea agreement‘s terms.
The court then asked Rodriguez whether he understood the appellate waiver specifically. Rodriguez initially professed some uncertainty and was permitted to consult with counsel off the record. Afterward, Rodriguez confirmed that he understood that he would “waive and give up [his] right to appeal [the] sentence and the judgment in the case” if the judge sentenced him “according to the terms, conditions, and recommendations contained in [the] plea agreement.” The court then ascertained that no one had “made any promise or assurance to . . . induce” Rodriguez to sign the plea agreement, that no one had “attempted in any way to force” him to do so, and that he was “pleading guilty of [his] own free will.”
Most of Rodriguez‘s numerous challenges to the colloquy boil down to one broad contention: that the court should have done more to “explain to him, in plain English, what [the] waiver meant, namely, the loss of appellate rights.” But the court asked Rodriguez: “[D]o you understand that if I sentence you according to the terms, conditions, and recommendations contained in your plea agreement, you waive and give up your right to appeal your sentence and the judgment in the case?” We think this language is sufficiently clear -- indeed, it is perhaps clearer than language we have upheld in other cases. See, e.g., United States v. Gonzalez-Colon, 582 F.3d 124, 127 (1st Cir. 2009) (“Do you understand that by pleading guilty, you will be held accountable to the waiver of appeal clause that appears in your respective plea agreements?“); United States v. Gil-Quezada, 445 F.3d 33, 37 (1st Cir. 2006) (“Do you understand that by entering into this plea agreement you may have waived or given up your right to appeal or collaterally attack all or part of the sentence?“).
Beyond that, the court ensured that Rodriguez and his counsel had reviewed the plea agreement “[w]ord for word” “in Spanish” before Rodriguez signed it, and that Rodriguez had freely consented to the agreement. In short, we are satisfied that the court did not plainly err in conducting its 11(b)(1)(N) inquiry.
B.
Finding that the district court did not plainly err in performing its duties under
Rodriguez argues that conducting his sentencing hearing via videoconference was impermissible under
We begin with Rule 43.
Of course, even if videoconferencing were permissible under Rule 43, it is possible that the CARES Act‘s apparently more robust requirements for remote sentencing should govern. The CARES Act permits sentencing via videoconference under certain public health conditions related to COVID-19.
As to the first contention, the parties agree that the court did not (as required by the Act) offer any “specific reasons that” Rodriguez‘s sentencing hearing could not “be further delayed without serious harm to the interests of justice.” CARES Act
How to ultimately reconcile Rule 43 with the CARES Act, we need not decide. Even if there was error here because the district court failed to strictly comply with the CARES Act, such error would not come close to making this an “egregious case[]” triggering the miscarriage-of-justice exception to plain error forfeiture. On these facts, neither the error nor its impact on Rodriguez would be “grav[e].” Gonzalez-Colon, 582 F.3d at 128 (quoting Gil-Quezada, 445 F.3d at 37).
Nor does Rodriguez‘s use of the phrase “structural defect” to describe this rather prosaic and relatively inconsequential procedural error change the equation. Structural errors comprise a “tiny class,” which “includes only the most pervasive and debilitating errors” that “infect ‘[t]he entire conduct of [a] trial from beginning to end.‘” United States v. Padilla, 415 F.3d 211, 219 (1st Cir. 2005) (en banc) (first alteration in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991)). Here, proving structural error is an especially daunting task: Because Rodriguez did not raise his claim below, plain error review applies. United States v. Lara, 970 F.3d 68, 86 (1st Cir. 2020) (“The plain error standard of review applies . . . even to challenges to structural errors if they were not raised below.” (citing Johnson, 520 U.S. at 466)), cert. denied sub nom. Williams v. United States, 141 S. Ct. 2821 (2021).
Perhaps Rodriguez believes that the district court would have been more receptive to his entreaties for leniency had he appeared in person. But while we do not doubt the value of in-person sentencing as a general matter, Rodriguez has failed to persuade us that proceeding via videoconference during a global pandemic with the express consent of a criminal defendant constitutes error sufficiently grave to warrant setting aside an otherwise valid appeal waiver.
C.
As to his sentence on the section 922(g)(1) conviction, Rodriguez argues that the district court erred when it “failed to either explicitly or implicitly rule on appellant‘s motion for a downward departure due to extraordinary family circumstances.” For its part, the government maintains that Rodriguez never made such a motion.
Even assuming arguendo that Rodriguez‘s requests for leniency constituted a motion for a downward departure, this challenge fails. Rodriguez does not attempt
D.
Rodriguez also alleges that his within-guideline-range sentence was substantively unreasonable. But, once again, Rodriguez fails to argue that sustaining the sentence would work a miscarriage of justice. So his valid appeal waiver dooms this claim as well.
E.
Finally, Rodriguez argues that the district court erred by ordering him to “complete his high school education” as a condition of supervised release included in his sentence on the section 922(g)(1) conviction. Rodriguez‘s valid appeal wavier covers conditions of supervised release, so we again consider whether Rodriguez has demonstrated a miscarriage of justice. Because we have suggested that plain sentencing error is “a subset” of the miscarriage-of-justice exception, Teeter, 257 F.3d at 25, we use the two standards interchangeably in this analysis.
Rodriguez concedes that “[d]istrict courts have significant flexibility to impose special conditions of supervised release.” United States v. Garrasteguy, 559 F.3d 34, 41 (1st Cir. 2009). Accordingly, he does not argue that a district court is without authority to impose educational conditions of supervised release. Nor does he dispute that educational opportunities can “benefit [a] defendant so that . . . he‘s better equipped to not re-commit crimes.” Rather, he asserts that on the “unusual facts” of his particular case, imposing a mandatory educational condition was plain error. Rodriguez has a documented learning disability and failed to complete the fourth grade on four separate occasions.
We are sympathetic to Rodriguez‘s claim that his liberty should not be curtailed if he fails to “complete his high school education” after a good-faith effort.5 And, given Rodriguez‘s educational history, he may not be an ideal candidate for the sort of mandatory educational requirement the district court imposed. Cf. United States v. McKissic, 428 F.3d 719, 724 (7th Cir. 2005) (opining that a requirement to complete high school was “especially
suited to” the defendant, who had “nearly completed his high school education“). That being said, Rodriguez expressed a desire to continue his education while incarcerated, and nothing in the record conclusively illustrates that he cannot find a way to satisfy the court-imposed condition.
On the whole, we think it too soon to say more about this issue given the limitations of our review. Rodriguez has more than three years of his prison term yet to serve. Certainly Rodriguez need try to complete a high school education. If he succeeds, the better for everyone, and the issue disappears. Conversely, should he fail, he can ask the district court to modify the mandatory educational condition under
condition he challenges in the near term“). And the record at that time will contain much more information, facilitating a more informed evaluation of the condition‘s validity, likely under a different standard than the one that controls our review of this direct appeal of the imposition of the condition.
IV.
For the foregoing reasons, we affirm Rodriguez‘s sentences.
KAYATTA
CIRCUIT JUDGE