APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge]
Elizabeth Billowitz on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, on brief for appellee.
Before Barron, Circuit Judge, Souter, [*] Associate Justice, and Selya, Circuit Judge.
BARRON, Circuit Judge.
Jonathan Milán-Rodríguez ("Milán") challenges his two, concurrent 168-month prison sentences for his convictions on one count of conspiring to distribute cocaine and one count of possessing a firearm while being an unlawful user of a controlled substance. We affirm the sentence for the drug conspiracy count, but we vacate the sentence for the firearm count because it exceeds the statutory maximum penalty for that count.
The initial indictment in this case charged Milán with one count of conspiring with forty-three other defendants to possess with intent to distribute a variety of controlled substances in a number of Puerto Rico locations, including near an elementary school, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860. That count of the indictment specifically noted that "some of the defendants would refer to Milán as the owner of the heroin." Milán was also charged, in a separate count of the indictment, with one count of conspiring with a large subset of the other defendants to possess firearms in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. §§ 924(c), (o).
Authorities arrested Milán on August 6, 2014, after Puerto Rico police officers responded to a tip about drug trafficking activities and gunshots near a residence in Puerto Nuevo, Puerto Rico. Officers saw Milán near the residence and saw him carrying a firearm. They then entered the residence (after receiving written consent from the homeowner) and found marijuana, cocaine, a loaded firearm, and extra ammunition. Milán later confessed that he was the sole owner of the items found at the residence. He was then charged, in a separate indictment, with possessing a firearm while being an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).
On October 15, 2014, Milán and the government signed a plea agreement. Under the agreement, Milán pleaded guilty to the drug conspiracy count charged in the first indictment and the firearm count charged in the second indictment. He did not plead guilty to the firearm count charged in the first indictment.
In the plea agreement, Milán admitted that, from at least 2000 through 2012, he conspired with the other charged defendants to possess with intent to distribute heroin, cocaine, cocaine base, and marijuana within 1000 feet of a school in Puerto Rico. Milán also acknowledged in the plea agreement that he acted as a "manager and owner" of one of the heroin "brands" sold by the drug-trafficking organization. Milán further admitted that he "possessed firearms to protect the drug trafficking activities."
The plea agreement also contained a stipulation as to drug weight. Milán admitted that he conspired to possess with intent to distribute "at least five (5.0) but less than fifteen (15.0) kilograms of cocaine." Milán did not admit, however, to conspiring to possess with intent to distribute any specific amount of the other drugs that he admitted were involved in the conspiracy. And so the calculation of the base offense level (and thus the recommended sentencing range under the United States Sentencing Guidelines) in the plea agreement was based on only the amount of cocaine to which Milán admitted conspiring to possess with intent to distribute.
The plea agreement also contained a waiver-of-appeal provision. We thus begin by addressing whether that provision bars us from considering the ...