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United States v. Rivera-Ruperto

United States Court of Appeals, First Circuit

January 13, 2017



          H. Manuel Hernández for appellant Wendell Rivera-Ruperto.

          Ignacio Fernández de Lahongrais for appellant Daviel Salinas-Acevedo.

          Camille Lizarribar-Buxó on brief for appellant Miguel Santiago-Cordero.

          Robert J. Heberle, Attorney, Public Integrity Section, Criminal Division, U.S. Department of Justice, with whom Juan Carlos Reyes-Ramos, Assistant United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.

          Before Torruella, Lipez, and Thompson, Circuit Judges.

          THOMPSON, Circuit Judge.

         In this appeal, Defendant-Appellants Wendell Rivera-Ruperto, Daviel Salinas-Acevedo, and Miguel Santiago-Cordero challenge various aspects of their trial and sentencing. For Rivera-Ruperto, this was his second of two trials, which were presided over by different district judges. Having separately addressed Rivera-Ruperto's challenges from the first trial in a decision simultaneously released herewith, we address in this opinion Rivera-Ruperto's challenges, as well as those of Salinas-Acevedo and Santiago-Cordero, as to the second trial only.

         During trial, all three defendants were convicted of various federal drug and firearms-related crimes for participating in drug deals that were staged as a part of the FBI sting operation "Operation Guard Shack, " about which we say more in a bit. As a result of the convictions, each was sentenced to multiple years of imprisonment. In the present appeal, Rivera-Ruperto raises similar challenges, which we detail momentarily, to those he raised in his appeal of his first trial and sentencing. As for Salinas-Acevedo, he argues the district court erred in preventing him from presenting an entrapment defense. Santiago-Cordero presses a similar argument, challenging the judge's refusal to give an entrapment jury instruction, and also appeals the district court's denial of his post-verdict motion for acquittal.

         For the reasons stated below, we affirm.


         We begin with a broad overview of the facts, and later return to the specific details of the case as they relate to the individual defendants' arguments.

         Operation Guard Shack, as we have explained in previous decisions, [1] was a large-scale investigation mounted by the FBI over several years in order to root out police corruption throughout Puerto Rico. Each of the stings followed a similar pattern. Undercover FBI informants recruited police officers to provide armed security at drug deals staged by the FBI. The deals took place at FBI-monitored apartments wired with hidden cameras, and involved undercover officers posing as sellers and buyers of sham cocaine. In exchange for their armed security services, the police officers were paid about $2, 000 per deal.

         Rivera-Ruperto, Salinas-Acevedo, and Santiago-Cordero provided armed security at several of these Operation Guard Shack sham drug deals between March and September of 2010. Rivera-Ruperto, who was not a police officer (but who was recruited because he misrepresented himself to the FBI's undercover informant as a prison corrections officer) provided armed security at six deals, which took place on April 9, April 14, April 27, June 9, June 25, and September 16 of 2010. Salinas-Acevedo and Santiago-Cordero, who were both police officers, participated in one deal each, on March 24, 2010, and July 8, 2010, respectively.

         The government charged the three defendants with one count each of conspiracy and attempted possession with intent to distribute a controlled substance, as well as possession of a firearm in relation to a drug trafficking crime. (Various other co-defendants were also charged, but their cases are not before us.) In this indictment, Rivera-Ruperto was charged for his participation in the April 9 deal only. For his participation in the five later deals, Rivera-Ruperto had already been indicted separately, tried before a different district judge, and found guilty. The first judge sentenced Rivera-Ruperto to 126-years and 10-months' imprisonment.

         Several months after Rivera-Ruperto's first trial, he, Salinas-Acevedo, and Santiago-Cordero were tried together in a second proceeding, which is the subject of this appeal. The jury found Rivera-Ruperto guilty of all charges, and Salinas-Acevedo and Santiago-Cordero guilty of the conspiracy and firearms counts (it did not reach a verdict for either of them on the attempted possession count). After separate sentencing hearings, the district judge sentenced Rivera-Ruperto to 35-years imprisonment to be served consecutively with his first sentence, resulting in a combined prison sentence from Rivera-Ruperto's two trials that totaled 161 years and 10 months. Salinas-Acevedo and Santiago-Cordero were each sentenced to 15-years and 1-month imprisonment.

         The defendants timely appealed. Rivera-Ruperto challenges various aspects of the trial and sentencing, and Salinas-Acevedo and Santiago-Cordero of the trial only. We discuss below each defendant in turn, beginning with Rivera-Ruperto.



         As we have previously noted, we issue today a companion decision to this case affirming the district court in Rivera-Ruperto's first trial and sentencing. Rivera-Ruperto's challenges here are similar to those he raised in that first appeal. Specifically, Rivera-Ruperto argues that the district court in this second case committed reversible errors when it: (1) failed to conduct a sua sponte inquiry to determine whether Rivera-Ruperto had received ineffective assistance of counsel during the plea-bargaining stage; (2) gave erroneous jury instructions; (3) did not reduce his sentence on account of sentencing manipulation by the government; and (4) sentenced him to a grossly disproportionate sentence in violation of the Eighth Amendment. For the reasons we explain, each of these challenges fails in this second appeal, as well.

         A. Lafler Claim

         Rivera-Ruperto reprises a Lafler challenge that he made (and lost) in his first appeal, in which he argues that he received ineffective assistance of counsel during the plea-bargaining phase. See Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (holding that a defendant's Sixth Amendment right to competent counsel extends to the plea-bargaining process). Before getting to his arguments, we give a brief recounting of what happened below.

         1. Background

         We set what is quite the complicated stage by again reminding the reader that Rivera-Ruperto eventually stood two trials, which were presided over by different district judges. Before the first trial began, Rivera-Ruperto was represented by court-appointed attorney Jose Aguayo ("Aguayo"), who remained his lawyer throughout the plea-bargaining stage.

         Aguayo attempted to negotiate a plea deal for all of Rivera-Ruperto's charges across the six sham drug deals (though Rivera-Ruperto had been indicted separately for the charges). When the negotiations resulted in no plea deal, the first case proceeded toward trial, this time with Rivera-Ruperto represented by different court-appointed counsel.

         Three days before that first trial was set to begin, Rivera-Ruperto's second attorney filed a Lafler motion, alleging that Aguayo had provided ineffective assistance of counsel at the plea-bargaining stage. He argued that but for Aguayo's deficient performance, Rivera-Ruperto would have taken a 12-year plea deal that the government had previously offered during negotiations, and he requested that the court order the government to re-offer that 12-year deal.

         On the morning of the day the first trial was scheduled to begin, the presiding judge held an evidentiary hearing on the issue. After considering the testimony and documentary evidence, the judge denied Rivera-Ruperto's ineffective assistance of counsel claim. For reasons that we explain in detail in our companion decision and will not rehash here, we have already affirmed the judge's denial of Rivera-Ruperto's Lafler claim as it pertains to his first trial.

         Some months after the first trial and sentencing, Rivera-Ruperto, represented by the same attorney, stood trial a second time for the charged offenses stemming from his participation in the April 9 deal only. At no time did trial counsel request that the second judge consider the Lafler argument Rivera-Ruperto had raised and lost before the first judge. Therefore, no ineffective assistance of counsel claim was raised by counsel or ruled upon by the judge in this second case.

         2. Analysis

         On appeal, Rivera-Ruperto acknowledges that counsel during his second trial never raised the Lafler issue, but he argues that the trial judge should nevertheless have made a sua sponte inquiry and independent ruling on the ineffective assistance of counsel claim. The judge's failure to do so, he claims, was reversible error.[2]

         Rivera-Ruperto never raised the Lafler issue before the second presiding judge, and we assume his claim was forfeited and not waived. We thus review the judge's purported failure to make a sua sponte inquiry on the ineffective assistance of counsel claim for plain error. United States v. Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005) ("[A] waived issue ordinarily cannot be resurrected on appeal, whereas a forfeited issue may be reviewed for plain error".).

         Reversal under plain error review is only proper if: (1) an error occurred; (2) it was obvious; (3) it affects the defendant's substantial rights; and (4) it is sufficiently fundamental to threaten the fairness, integrity or public reputation of the proceedings. United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014). Rivera-Ruperto cannot succeed in meeting these requirements. Even assuming that he clears the first three of the plain error review hurdles, Rivera-Ruperto cannot clear the fourth, because he cannot show that the judge's purported error was sufficiently fundamental to threaten the fairness, integrity or public reputation of the proceedings.

         In order to meet this fourth requirement, Rivera-Ruperto would need to show that if the judge had made a sua sponte inquiry into his ineffective assistance of counsel claim, she would indeed have found that Rivera-Ruperto had received ineffective assistance at the plea-bargaining stage, and was therefore entitled to appropriate relief. But, for reasons we explain in great detail in our companion decision to this case, and which we will not belabor here, we have already determined, on de novo review, that Rivera-Ruperto was not entitled to Lafler relief, as he cannot meet the two-part ineffective assistance of counsel test laid out in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Lafler, 132 S.Ct. at 1376. Specifically, Rivera-Ruperto is unable to show either that Aguayo's performance was defective or that, even if defective performance were to be assumed, it prejudiced him. Thus, any claimed error on the second judge's part in failing to conduct a sua sponte Lafler inquiry did not threaten the fairness or integrity of Rivera-Ruperto's proceedings, and reversal on this ground is not proper.

         B. Alleyne Issue

         We move on to Rivera-Ruperto's appeal of the jury instructions at his second trial, the only one of Rivera-Ruperto's claimed errors that we have not also addressed in our companion decision. Rivera-Ruperto challenges the jury instructions regarding the firearms charges only, so we focus our discussion accordingly. First, a discussion of what happened below.

         1. Background

         Before we begin, we pause to remind the reader that at his first trial, among other offenses, Rivera-Ruperto had been charged with and convicted of one count of possession of a firearm in relation to a drug trafficking crime for his participation in each of five sham drug deals (which occurred on April 14, April 27, June 9, June 25, and September 16 of 2010). Under 18 U.S.C. § 924(c)(1)(A), a defendant who is convicted of possession of a firearm in relation to a drug trafficking crime is subject to a mandatory minimum sentence of 5-years imprisonment on the first conviction, and then 25-years imprisonment for every subsequent conviction, id. § 924(c)(1)(C)(i), to be served consecutively, id. § 924(c)(1)(D)(ii). Accordingly, following the trial, the first district judge sentenced Rivera-Ruperto to a total of 105 years imprisonment for his firearms convictions (5 years for the first § 924(c) conviction, and 25 for each of the subsequent four convictions).

         At the second trial, Rivera-Ruperto was again tried, among other offenses, for possession of a firearm in relation to a drug trafficking crime, this time for his participation in the April 9, 2010 drug deal only. Notable for Rivera-Ruperto's purposes, the government did not introduce at the second trial any evidence of Rivera-Ruperto's prior § 924 convictions from his first trial. In addition, while the judge instructed the jury as to the elements of the firearms offense, neither the jury instructions nor the verdict form included prior § 924 convictions as an "element" of the offense, or otherwise made any mention of Rivera-Ruperto's prior convictions.[3] After deliberating, the jury found Rivera-Ruperto guilty of all counts.

         Prior to sentencing, Rivera-Ruperto filed a sentencing memorandum in which he argued that -- notwithstanding his five previous § 924 convictions from the first trial -- the judge should impose the 5-year mandatory minimum sentence for a first-time conviction under the firearms statute, and not the 25-year minimum for subsequent convictions. Rivera-Ruperto argued that the judge could not impose the "enhanced" mandatory minimum because the jury had not made a beyond-a-reasonable-doubt finding as to his prior § 924 convictions.

         The judge disagreed, denying the request in a written order prior to sentencing. After a hearing, the judge imposed the 25-year minimum sentence for a subsequent § 924 conviction. Rivera-Ruperto now appeals.

         2. Analysis

         Because the sentencing memorandum Rivera-Ruperto filed before the district court preserved his Alleyne challenge, our review of his argument on appeal is de novo.[4] See Delgado-Marrero, 744 F.3d at 184.

         In order to explain Rivera-Ruperto's argument, we must first give a bit of background on the relevant case law. At the time of Rivera-Ruperto's second trial, the rule was (and still is, as we explain in a moment) that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum" is an element of the offense to be found by a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis added). In making this exception for prior convictions in Apprendi, the Supreme Court deliberately left undisturbed its holding in Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), which permitted the use of prior convictions to enhance sentences without a finding by the jury.

         Between Rivera-Ruperto's trial and sentencing, the Supreme Court decided Alleynev.United States, 133 S.Ct. 2151, 2155 (2013), in which it held that the Apprendi rule applied not only to facts that increase the mandatory maximum sentence, but also to those that increase the mandatory minimum (thus overruling its prior holding in Harrisv.United States, 536 U.S. 545, 568 (2002), which had limited Apprendi to the former). The Supreme Court explicitly stated, however, that its decision ...

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