FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
L. Solomon and Pollack, Solomon, Duffy LLP on brief for
Tiffany V. Monrose, Assistant United States
Attorney, Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Nelson Pérez-Sosa, Assistant
United States Attorney, Chief, Appellate Division, on brief
Torruella, Thompson, Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
("Díaz") pled guilty to aiding and abetting
others in the possession of a firearm that was discharged
during a robbery in violation of 18 U.S.C. §§
924(c)(1)(A)(iii) and 2. On appeal, Díaz argues that
his sentence should be vacated for lack of a factual basis to
support his guilty plea. After careful review, we affirm the
district court's sentence.
facts of this case are largely undisputed. On September 1,
2010, two employees of the Ranger American Armored Services
were driving an armored truck on their normal delivery route.
When they arrived at the Morovena Credit Union in Morovis,
Puerto Rico to deliver $80, 000 to the bank, they were
attacked by several armed robbers who pulled up behind them
in a dark-grey Toyota. Díaz was one of the robbers.
During the course of the heist, one robber struck the
employee who had exited the armored truck with the cash in
the back of the head, while another robber pointed a .357
Magnum at that employee. The employee ultimately threw the
bag of money to the ground and one robber picked it up.
Díaz then grabbed the employee in a bear-hug from
behind and the employee noticed that he, too, was carrying a
gun. The robber wielding the .357 Magnum then fired shots in
the direction of both the employee and Díaz.
Díaz was struck in the left arm and left leg, the
employee was shot in the abdomen, and they both collapsed to
the ground. Another rifle-toting robber fired at the second
Ranger American employee who had remained inside the armored
truck, but he managed to drive away and escape the scene.
Then the robbers attempted to shoot the remaining wounded
employee in the head. Fortunately, the robbers were out of
ammunition and the employee was able to escape. The robbers,
including Díaz, then re-entered the dark-grey Toyota
and drove off, but were later apprehended by authorities.
March 3, 2011 the government filed a superseding two-count
indictment charging Díaz with aiding and abetting
others in the robbery of a bank armored truck in violation of
18 U.S.C. §§ 1951 and 2 (Count One) and with
carrying and using a firearm that was discharged during and
in relation to the robbery in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2 (Count Two). Count Two did
not actually use the words "aiding and abetting" as
Count One did; however, it did cite to the aiding and
abetting statute at 18 U.S.C. § 2 (which specifically
provides that "[w]hoever commits an offense against the
United States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal").
October 3, 2014, the parties entered into a plea agreement
(the "Agreement"). By the precise terms of the
Agreement, Díaz agreed to plead guilty to Count One,
which "charge[d] that [Díaz], aiding and abetting
others, did obstruct, delay, and affect commerce, and the
movement of articles and commodities in such commerce, by
robbery in violation of 18 U.S.C. §§ 1951 and
2." Díaz also agreed to plead guilty to Count
Two, which "charge[d] that [Díaz], aiding and
abetting others, did knowingly carry and use a firearm, which
firearm was discharged, during and in relation to [the
robbery charged in Count One]." The parties also agreed
to the statutory penalties applicable to both counts. In
relevant part, the parties agreed that Count One had a
statutory maximum imprisonment term of no more than twenty
years (or 240 months) pursuant to 18 U.S.C. § 1951. The
parties also agreed that Count Two had a mandatory minimum
term of not less than ten years (or 120 months) and a
potential maximum of life imprisonment pursuant to 18 U.S.C.
purposes of calculating Díaz's sentence under the
United States Sentencing Guidelines Manual
("Guidelines"), the parties further agreed to a
total offense level of 28 for Count One, made no
determination as to the applicable criminal history category,
and agreed that Count Two was subject to a 120-month (or ten
year) mandatory minimum to run consecutively to Count One.
The Agreement also contained a waiver-of-appeal clause which
provided that Díaz knowingly and voluntarily waived
the right to appeal the judgment and sentence in his case,
provided that he was sentenced in accordance with the terms
and conditions set forth in the sentencing recommendation
provisions of the Agreement.
October 3, 2014, Díaz pled guilty to both counts of
the indictment and on February 18, 2015, finding an
applicable criminal history category of III and a total
offense level of 28, the court sentenced Díaz in
accordance with the terms of the plea agreement to 120 months
as to Count One and another 120 months as to Count Two, to be
served consecutively. Díaz did not challenge the
court's sentencing nor did he attempt to withdraw his
now appeals his sentence, arguing that the court incorrectly
sentenced him to 120 months as to Count Two (Díaz does
not challenge the court's sentence as to Count One).
Díaz argues that although he signed a plea agreement
with a waiver-of-appeal clause and was sentenced in
accordance with that agreement, his sentence on Count Two
should be reversed because the court did not properly
calculate the applicable Guidelines range. Specifically,