FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
Backiel on brief for appellant.
A. Schwartz, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on
brief for appellee.
Howard, Chief Judge, Torruella and Lynch, Circuit Judges.
with being an armed member of a drug-dealing conspiracy,
Jeffrey Delgado-López pleaded guilty. The district
court accepted Delgado-López's plea and sentenced
him to 33 months in prison for the drug count of the
indictment, as well as 60 consecutive months for the
accompanying weapons count. Delgado-López did not
attempt to withdraw his plea before the district court.
now seeks to vacate both his guilty plea and his sentence. He
argues that we must vacate his plea on Count Six, the weapons
charge, because it was neither "knowing" nor rooted
in a factual basis. He also asserts that the district court
erred by augmenting his Guidelines sentencing range on a
mistaken belief that Delgado-López was on probation
for a separate offense when he committed the crimes at issue
here. Finding no error on either score, we affirm.
was indicted on April 23, 2014, as one of 48 defendants who
had allegedly conspired to sell heroin, cocaine, and
marijuana at public-housing projects in Mayagüez, Puerto
Rico. The government agreed to abandon Counts Two through
Five of the indictment if Delgado-López would agree,
in exchange, to plead guilty to Count One, which charged him
with participating in the conspiracy to possess illegal drugs
with intent to distribute, see 21 U.S.C.
§§ 841(a)(1), 846, 860, and Count Six, which
charged him with using or carrying a firearm in furtherance
of the conspiracy, see 18 U.S.C. §§ 2,
took the deal. On October 29, 2014, at his change-of-plea
hearing, he stated that he was competent to plead, felt
satisfied with his attorney, understood that he was waiving
his constitutional right to a trial, and understood the
nature and consequences of each charge to which he was
pleading guilty. With respect to the weapons count, he told
the district judge that he understood the charge but that the
underlying allegation -- that he had used or carried a weapon
-- was "a lie." The judge then explained that,
"[w]hether [the allegation was] completely true or not
completely true, " Delgado-López was choosing to
plead guilty to avoid the possibility that the government had
enough evidence to prove the weapons charge at trial -- in
which case, as the judge had explained earlier,
Delgado-López would likely receive a considerably
harsher sentence. Delgado-López confirmed that he
understood that choice, that his attorney had explained the
situation to him, and that he wanted to go forward with the
took place months later on February 12, 2015.
Delgado-López did not object in court to the
Presentence Investigation Report ("PSR"), which
contained, in pertinent part, two additional criminal-history
points in the calculation of his Guidelines range for
participating in the conspiracy while he was on probation.
See U.S.S.G. § 4A1.1(d). That enhancement moved
Delgado-López from Criminal History Category I to
Category II, thereby shifting his Guidelines range for Count
One upward from 30-37 months to 33-41 months. See
id. ch. 5, pt. A. The district court chose to impose a
33-month sentence for Count One, at the bottom of the
agreed-upon Guidelines range, as well as a mandatory-minimum
60-month sentence for Count Six. See 18 U.S.C.
timely appeal under 28 U.S.C. § 1291 followed.
failed to object to either of the two purported errors he now
identifies. So he faces the "heavy burden" of
plain-error review and must prove not only a clear error but
also that the error "affected [his] substantial rights
[and] seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United
States v. Ramos-Mejía, 721 F.3d
12, 14 (1st Cir. 2013) (quoting United States
v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001)). He cannot meet this burden. A. Guilty Plea
first claims that his guilty plea was not "knowing"
with respect to Count Six. At the outset, we agree with
Delgado-López that the appeal waiver in his plea
agreement does not bar this claim. "After all, if a plea
is invalid, the plea agreement (and, thus, the waiver
provision contained within it) disintegrates."
Id. But we need not dwell further on a moot point.
We find no error, much less plain error,  in the district
court's decision to accept Delgado-López's
plea. See, e.g., United Statesv.Chambers, 710 F.3d 23, 27, ...