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United States v. Llanos-Falero

United States Court of Appeals, First Circuit

January 30, 2017

UNITED STATES OF AMERICA, Appellee,
v.
AURELIO J. LLANOS-FALERO, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

          José R. Olmo-Rodríguez on brief for appellant.

          Mainon A. Schwartz, Assistant United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

          LYNCH, Circuit Judge.

The district court sentenced Aurelio Llanos-Falero to 137 months of imprisonment after he pled guilty to bank robbery, see 18 U.S.C. §§ 2113(a), 2113(d), and 2, and to brandishing a firearm during and in relation to a crime of violence, see id. §§ 924(c)(1)(A)(ii), and 2. The district court ordered that this sentence run consecutively with Llanos-Falero's sentences for Puerto Rico law convictions for domestic assault and illegal possession of a submachine gun. Llanos-Falero appeals the district court's sentence, arguing that the sentencing judge failed to make the proper inquiry into the effects of Llanos-Falero's medication on his competence to enter a plea, that the sentencing judge failed to warn Llanos-Falero before accepting his plea that his federal sentence might be imposed consecutively with his Puerto Rico sentences, and that the consecutively imposed federal sentence is unreasonable. We affirm the sentence.

         I.

         In June 2011, while serving a four-year probation sentence for a robbery, Llanos-Falero conspired with at least two associates to rob a Banco Santander de Puerto Rico branch in Cabo Rojo, Puerto Rico. As admitted in his plea agreement, he "selected the branch, conducted surveillance on the bank, planned the method of the robbery, including the use and carrying of a firearm in the presence of customers and employees, as well as the entry and egress points to and from the bank."

         On June 24, 2011, an associate of Llanos-Falero drew police away from the vicinity of the bank with a bogus 911 call while Llanos-Falero drove two other associates to the bank. The two associates entered the bank, one of them took out a loaded 12-gauge shotgun, and they ordered those inside the bank to the floor. They stole approximately $38, 813 of deposits insured by the Federal Deposit Insurance Corporation. Because one of the bank employees was able to activate the bank's silent alarm, the two associates were arrested about ten minutes after the start of the robbery. Initially, they did not disclose Llanos-Falero's participation in the robbery. As a result, Llanos-Falero was not arrested at that time in connection with the robbery.

         After the robbery and before being charged with federal crimes for his participation in it, Llanos-Falero committed a number of other offenses. In October 2012, he was sentenced by a Puerto Rico court to 1 year and 9 months of imprisonment for two counts of domestic violence. In 2013, he pled guilty to charges stemming from illegal possession of a submachine gun in 2012 and was sentenced by a Puerto Rico court to a further 7 years of incarceration.

         Llanos-Falero was indicted for federal crimes related to the bank robbery in April 2014, while serving his Puerto Rico law sentences.[1] The indictment charged three counts: an aiding and abetting violation of armed robbery, see 18 U.S.C. §§ 2113(a), 2113(d), and 2 (Count One); an aiding and abetting violation of brandishing a firearm during and in relation to a crime of violence, see id. §§ 924(c)(1)(A)(ii), and 2 (Count Two); and being a felon in knowing possession of a firearm in interstate commerce, see id. §§ 922(g)(1), 924(a)(2) (Count Three).

         Pursuant to a plea agreement, Llanos-Falero pled guilty to the first two counts on July 3, 2014. The parties recommended, "[a]fter due consideration of the relevant factors enumerated in 18 U.S.C. § 3553(a), " an adjusted advisory Sentencing Guidelines offense level of 22 for Count One, and did not stipulate as to criminal history category. A Pre-Sentence Investigation Report, prepared for Llanos-Falero's sentencing, concluded that Llanos-Falero had 11 criminal history points and a criminal history category of V. The plea agreement recommended "a sentence of 72 months as to Count One and 60 months for Count Two to be served consecutively for a total sentence of 132 months, or 11 years of imprisonment." The plea agreement further stated that "[t]he parties jointly recommend[ed], as to Count One, that this federal sentence be imposed to run concurrently with defendant's Commonwealth of Puerto Rico sentence currently being served."

         Through the plea agreement, Llanos-Falero "knowingly and voluntarily waive[d] the right to appeal the judgment and sentence in [his federal] case, provided that [he was] sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provision of [the] Plea Agreement." He further acknowledged that he was "aware that his sentence [wa]s within the sound discretion of the judge and of the advisory nature of the Guidelines"; that "the [district court] [wa]s not a party to this Plea and Forfeiture Agreement and thus [wa]s not bound by this agreement or the sentencing calculations and recommendations contained"; that "the [district court] ha[d] jurisdiction and authority to impose any sentence within the statutory maximum set for the offense to which [he] [wa]s pleading guilty"; that "the [district court] m[ight] accept or reject the Plea and Forfeiture Agreement"; and that "[s]hould the Court impose a sentence up to the maximum established by statute, [he] c[ould not], for that reason alone, withdraw his guilty plea, and w[ould] remain bound to fulfill all of the obligations under this Plea and Forfeiture Agreement."

         On July 3, 2014, the district court held a change-of-plea hearing. In the course of the hearing, the sentencing judge asked if Llanos-Falero had been recently treated for a mental illness. Llanos-Falero responded that he had been treated for bipolar disorder and stress. In response to the sentencing judge's questions, Llanos-Falero also said that he had been prescribed "Elavil, Vistaril, and another" medication, that he continued to take those medications twice a day, and that he had taken them the morning of the hearing. When asked "Do you feel okay today?" by the sentencing judge, immediately after that colloquy, Llanos-Falero responded "Yes, I do, ...


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