UNITED STATES of America, Appellee, v. Ricardo URBINA-ROBLES, Defendant-Appellant.
No. 14-1530.
United States Court of Appeals, First Circuit.
April 1, 2016.
817 F.3d 838
Francisco A. Besosa-Martinez, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellant.
Before HOWARD, Chief Judge, THOMPSON and BARRON, Circuit Judges.
BARRON, Circuit Judge.
Ricardo Urbina-Robles (“Urbina“) pled guilty to carjacking,
I.
This case arises from a harrowing crime.1 Early in the morning on February 4, 2013, Urbina and two accomplices broke into the victims’ home in Puerto Nuevo, Puerto Rico. All three burglars wore masks and carried firearms. Once inside the home, the burglars tormented the victims, a father and son, both physically and mentally. They also stole several items, including a car. The robbers then drove away in the father‘s car, and the father called the police.
A grand jury indicted Urbina for carjacking,
II.
On appeal, Urbina first asks this Court to vacate his guilty plea to Count I of the indictment, which charges Urbina with committing carjacking in violation of
The indictment does not refer to the words “the person or presence.” Instead, the indictment simply charges Urbina with taking a motor vehicle “from N.D.R. [(the victim)], by force, violence, and intimidation” (emphasis added). Urbina contends that charging a defendant with taking a car “from” someone is not the same, legally, as charging a defendant with taking a car “from the person or presence” of someone: The former formulation of the crime, Urbina argues, does not require the same showing of the car‘s proximity to the person from whom it has been taken as does the latter formulation, which is the one that the carjacking statute uses. See United States v. Savarese, 385 F.3d 15, 18-19 (1st Cir.2004) (discussing the proximity required by the carjacking statute). He thus argues that the indictment omitted an element of the crime for which he was charged.
The Supreme Court has held, however, that defects in indictments are not jurisdictional and thus are subject to waiver. See United States v. Cotton, 535 U.S. 625, 630 (2002) (“[D]efects in an indictment do not deprive a court of its power to adjudicate a case.“); see also United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir. 2000) (stating that an indictment‘s omission of an element is subject to plain error review). Accordingly, Urbina waived his right to bring this non-jurisdictional challenge when he pled guilty to the crime. See United States v. Diaz-Doncel, 811 F.3d 517, 518 (1st Cir.2016) (holding that, absent exceptions not applicable here, an unconditional guilty plea waives nonjurisdictional challenges to a conviction).
Nevertheless, Urbina does retain the right to challenge the validity of his plea. See United States v. Castro-Vazquez, 802 F.3d 28, 32-33 (1st Cir.2015). And he challenges his plea on a number of grounds, including one that relies in part on the same contention about the indictment‘s misstatement of the “from the person of presence of” element. We now turn to those challenges.
III.
To argue that his guilty plea should be vacated, Urbina points to what he contends were the District Court‘s violations of various
But while Urbina argues that he satisfies this standard as to each Rule 11 violation, he does not in fact meet it as to any. We start with the one that is closely tied to the omission of the “person or presence” language of
A.
During Urbina‘s plea colloquy, the District Court told Urbina that he was
Our prior decisions in Gandia-Maysonet, 227 F.3d 1, and United States v. Delgado-Hernandez, 420 F.3d 16 (1st Cir.2005), provide the framework for assessing this challenge. As we explained in Gandia-Maysonet, 227 F.3d at 3, “because a guilty plea is a shortcut around the fact-finding process, reviewing courts have been willing to intervene when an error in the guilty plea process arguably affects a ‘core concern’ of Rule 11.” (quoting United States v. Hernandez-Wilson, 186 F.3d 1, 5 (1st Cir.1999)). And one such core concern is “ensuring that the defendant understands the elements of the charges that the prosecution would have to prove at trial.” Id.; see also Delgado-Hernandez, 420 F.3d at 19 (“In order to be constitutionally valid, a guilty plea must be voluntary and intelligent.” (citing Bousley v. United States, 523 U.S. 614, 618 (1998))).
The government‘s sole contention is that there was no clear or obvious error in the colloquy because the difference between “from the possession of” and “from the person or presence of” is not material. But the government is wrong. For while every auto theft entails taking a car from the possession of the car‘s owner—regardless of how proximate the car is to the victim when it is taken—not every auto theft entails taking the car from “the person or presence” of the owner. It is only those thefts that involve taking a car that is proximate to the victim in this specific way, however, that Congress saw fit to criminalize under the carjacking statute. Cf. Savarese, 385 F.3d at 18-19.
In some cases, the indictment or the plea agreement may properly describe the same element that is misstated in the plea colloquy. See Delgado-Hernandez, 420 F.3d at 26. In such cases, the error thus might not undermine the Rule 11 requirement‘s “core concern“: ensuring that “the defendant understands the elements of the charges that the prosecution would have to prove at trial.” Gandia-Maysonet, 227 F.3d at 3.
But here, as we have noted, the indictment itself misstated the element that the car be taken “from the person or presence” of the victim. In fact, the indictment did not even include the words “the possession of” that the government contends (wrongly) were an adequate substitute for the words Congress used to establish the element. Instead, the indictment simply stated that Urbina was charged with taking the vehicle “from” the victim “by force, violence, and intimidation.” Nor was there a plea agreement that might have provided Urbina with the requisite notice of the element in question.2
Notwithstanding the significance of the misstatement in the colloquy, Urbina still
does need to show that there is a reasonable probability that he would not have pled guilty had the Rule 11 colloquy been conducted without this error. See Gandia-Maysonet, 227 F.3d at 4-5. But, in his initial briefing, as well as in the supplemental briefing this panel ordered on this very issue, Urbina merely asserts that he might not have so pled. On this record, that contention is not enough.
The discovery materials Urbina received prior to his guilty plea clearly suggested that, at trial, the government would have little trouble proving the “person or presence” element. Those materials included: photos which show that the house had a driveway and a garage, where the car could have been; a statement Urbina made to the police that “he acted alone, that he walked by the house[,] saw the car, and took it;” the report from a photo array, in which the victim identified Urbina “as one of the assailants who did the home invasion/carjacking at his residence” and the affidavit attached to the search warrant, which alleged that two of the home-invaders “opened the front door of the ... residence and began to load items” into the car. The discovery materials also included surveillance video of Urbina leaving the victim‘s subdivision in the victim‘s car on the night of the crime.
Moreover, there was overwhelming evidence that, if this was a carjacking, Urbina was the culprit. As proof of Urbina‘s involvement in the crime, the government had: an eyewitness identification of Urbina by the victim of the crime, the surveillance video mentioned above, and the fact that the victim‘s car keys and a bottle of champagne stolen from the victim were both found in Urbina‘s residence.
Given this record, Urbina‘s bare contention that there is a reasonable probability that he might have pled differently if the colloquy had properly described the element that the indictment misstated is not enough. And our conclusion that he has not made the requisite showing is reinforced by the lengthy sentence Urbina faced and the substantial benefit he received by pleading guilty. Thus, Urbina‘s unpreserved challenge to this Rule 11 violation—clear though the violation is—fails. See Gandia-Maysonet, 227 F.3d at 5; see also Delgado-Hernandez, 420 F.3d at 27.3
B.
We now consider Urbina‘s other Rule 11 challenges. Each of them also fails, either because there was no error at all,4 or because Urbina cannot show prejudice.
1.
The first of these challenges concerns
Nonetheless, Urbina does not explain how the District Court‘s overstatement of the potential period of supervised release could have affected his plea decision, given that he knew he was facing a lengthy prison term. Indeed, Urbina‘s straight plea yielded him a three-level reduction in his offense level under the sentencing guidelines. Without that reduction, Urbina‘s guidelines sentencing range would have been 360 months to life, instead of 272 months to 319 months. See USSG § 4B1.1(c)(2)-(3). Urbina offers no account—nor is one apparent to us—as to why he might have given up that significant benefit, and proceeded to trial, if the District Court did not commit this Rule 11 error. See Dominguez Benitez, 542 U.S. at 84-85.
2.
Urbina‘s next challenge concerns
3.
Finally, Urbina points to the District Court‘s violation of
Once again, though, Urbina cannot show prejudice. The District Court‘s failure to mention the sentencing guidelines was not comparable to the significant misstatements of possible consequences that were present in the cases on which Urbina relies. See United States v. Rivera-Maldonado, 560 F.3d 16, 19-21 (1st Cir.2009); United States v. Santo, 225 F.3d 92, 99-100 (1st Cir.2000). In Santo, the District Court misinformed the defendant of the possible statutory minimum and maximum prison terms he faced. Id. at 99-100. In Rivera-Maldonado, the District Court told the defendant that he faced a three-year maximum term of supervised release, when in fact he faced a maximum life term. Id. at 19-21. Urbina develops no argument as to how the District Court‘s error “dramatically altered the sentencing stakes for” him, given how substantial even the minimum sentence he faced was. Id. at 21. Nor does he give any account as to why, but for the District Court‘s error, he might have given up the substantial benefit that he received by pleading guilty. Thus, as concerning as this error is, we do not think it suffices to vacate Urbina‘s plea on plain error review.
C.
None of this is to minimize the District Court‘s multiple failures to follow the requirements of Rule 11. The Rule‘s requirements are mandatory, and the District Court‘s multiple divergences from those requirements are concerning. But Urbina, who did not object to any of the Rule 11 errors in the district court, has not met his burden on plain error review. And that is no less true even if we consider—as Urbina says we should—all of the Rule 11 violations together, given the substantial evidence of Urbina‘s guilt, the lengthy prison sentence that he faced, and the benefit that he received because of his plea.
IV.
Finally, Urbina challenges his sentence. He contends that the District Court committed procedural errors in imposing the sentence, and he argues that the sentence also is substantively unreasonable. We address each challenge in turn.
A.
Urbina contends that the District Court committed procedural error in applying three enhancements when calculating Urbina‘s base offense level under the United States Sentencing Guidelines. See United States v. Prange, 771 F.3d 17, 33 (1st Cir.2014). Specifically, Urbina contends that (1) no “serious bodily injury” resulted from the carjacking offense, see USSG § 2B3.1(b)(3)(B); (2) no actual “loss” of more than $50,000 resulted from the carjacking offense, see USSG § 2B3.1(b)(7)(C)(2013); and (3) there was no evidence that Urbina “knew or should have known that a victim of the offense was a vulnerable victim,” see USSG § 3A1.1(b). Urbina did not raise any of these arguments below, and so we review each for plain error. See United States v. Figuereo, 404 F.3d 537, 540 (1st Cir.2005). None has merit.
1.
Urbina first challenges the District Court‘s finding that one or more of the victims sustained “serious bodily injury” under USSG § 2B3.1(b)(3)(B). This finding resulted in a four-level increase to
The record indicates that Urbina and his accomplices abused the father and son physically and emotionally for over one hour. Urbina and his accomplices dragged the son around the victims’ house while repeatedly hitting him on the head with a handgun. They also hit the father on the head multiple times with their firearms, held a knife to the son‘s neck while threatening to kill him, tied the father and son up in the bathroom, and threatened to get pliers to pull out the son‘s fingernails. As a result of that conduct, the father had a lesion on his head, and he and his son had multiple bruises on their faces and heads.
Both the father and son also have continued to receive psychological and psychiatric treatment since the night of the crime. The father has been diagnosed with depression, anxiety, panic attacks, and insomnia as a result of the trauma. Immediately after the crime, he could sleep only an hour per night. Despite psychiatric medication and treatment, a year after the incident he was still unable to sleep more than four to five hours each night. The father, who is a surgeon, also has been unable to perform surgeries as a result of the mental impact of the crime. In addition, the father told the District Court at sentencing that his son “doesn‘t want to go back to a patio, doesn‘t want to ride a bike, because [Urbina] and [his] gang might show up.”
On these facts, the District Court did not make a clear or obvious error in applying the “serious bodily injury” enhancement. The Fifth Circuit, in United States v. Reed, 26 F.3d 523 (5th Cir.1994), a case Urbina cites, held that a victim‘s “post-traumatic stress syndrome” from a robbery did constitute “serious bodily injury” under the sentencing guidelines.6 Id. at 530-31. And we have held that “serious and continuing mental trauma,” at least where it follows a serious physical assault, can constitute a “protracted ... impairment” of “mental faculty” for purposes of the nearly identical definition of “serious bodily injury” contained in
2.
Urbina next asserts that the District Court erred when it applied a two-level increase to the carjacking offense under USSG § 2B3.1(b)(7)(C) (2013), after finding that the offense involved a “loss” of over $50,000. Urbina contends that the presentence report states that the loss from the offense was only $40,000, and that the District Court overestimated the amount lost.
Urbina is wrong. The presentence report—which Urbina does not contest—
3.
Third, and finally, Urbina argues that the District Court was wrong to apply a two-level enhancement because Urbina “knew or should have known that a victim of the offense was a vulnerable victim.” USSG § 3A1.1(b)(1). A “vulnerable victim” is one “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.”
Urbina does not dispute that the son—who was a minor—qualifies as a “vulnerable victim” under the guideline. See United States v. Walker, 665 F.3d 212, 233 (1st Cir.2011) (“Minors are often regarded as especially vulnerable victims.“). Urbina argues instead that the son just “happened to be a minor,” and that Urbina “had no prior knowledge, or reason to know, the age of any of [the] victims.”
Implicit in the District Court‘s ruling, however, was a finding that Urbina knew or should have known that the son was a minor and thus a vulnerable victim. See United States v. Melendez, 279 F.3d 16, 18-19 (1st Cir.2002) (explaining that district courts may make implicit findings in imposing sentences). And the District Court did not plainly err in so finding. The son was only twelve years old at the time of the crime, and the details of the crime were such that it would be reasonable to conclude that Urbina would have been aware of the son‘s youth.7
B.
Finally, Urbina argues briefly that his 360-month sentence is substantively unreasonable. Our review is for abuse of discretion. United States v. Trinidad-Acosta, 773 F.3d 298, 308 (1st Cir.2014).
Urbina‘s sentence exceeded the top of the guidelines range by forty-one months. Urbina points out that the range in this case had already been enhanced as a result of Urbina‘s criminal history and the characteristics of the offense. Urbina contends that a sentence as long as his was therefore unjustifiable. It was not.
“The linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result.” Id. (quoting United States v. Ramos, 763 F.3d 45, 58 (1st Cir.2014)). The record demonstrates that the District Court considered Urbina‘s long criminal history, which included a
V.
For the foregoing reasons, we affirm Urbina‘s conviction and sentence.
BARRON
UNITED STATES CIRCUIT JUDGE