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United States v. Rivera-Cruz

United States Court of Appeals, First Circuit

December 22, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JOSE LUIS RIVERA-CRUZ, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Aida M. Delgado-Colón, U.S. District Judge

          Merritt Schnipper, with whom Schnipper Hennessey was on brief, for appellant.

          Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Lynch and Lipez, Circuit Judges, and Ponsor, District Judge. [*]

          LYNCH, CIRCUIT JUDGE.

         Police officers were searching a mall for a motorcyclist who had violated traffic laws when they were spotted by Jose Luis Rivera-Cruz. Upon seeing the police officers, Rivera-Cruz took off, yelling "police!" into a walkie-talkie. The officers recovered a loaded revolver with an obliterated serial number from a fanny pack that Rivera-Cruz had tossed onto the ground during his flight.

         On the eve of trial, Rivera-Cruz pleaded guilty to being a felon in possession of a firearm. The Sentencing Guidelines calculations in his plea agreement included a three-level reduction in offense level for acceptance of responsibility. The plea agreement permitted Rivera-Cruz to argue for a sentence of 96 months, and the government to argue for a statutory-maximum sentence of 120 months.

         The Guidelines calculations in the presentence investigation report ("PSR") also contained a three-level reduction for acceptance for responsibility. But unlike the plea agreement, the PSR contained a four-level enhancement in offense level because the gun recovered from Rivera-Cruz had an obliterated serial number. The resulting Guidelines sentencing range ("GSR") in the PSR was 110 to 137 months. At sentencing, Rivera-Cruz argued for a 96-month sentence and the government argued for a 120-month sentence, consistent with the plea agreement. The district court ultimately adopted the PSR's calculations, and sentenced Rivera-Cruz to 120 months in prison.

         On appeal, Rivera-Cruz argues that the plea agreement is invalid because it lacked consideration. As such, he argues that he should be entitled to withdraw his plea. Because we find that the government provided adequate consideration for Rivera-Cruz's guilty plea, we affirm.

         I. Background

         A. Facts

         On October 31, 2015, municipal police officers in Barceloneta, Puerto Rico were searching the Maranata Mall for an unidentified individual who had violated the Puerto Rico Transit Law by riding a motorcycle on a state road without any lights on, with his face covered, and without a helmet. Rivera-Cruz was in the mall's parking area during the search. Upon seeing the officers approaching, Rivera-Cruz fled, yelling "police!" into a walkie-talkie. The police gave chase and, during the pursuit, saw Rivera-Cruz toss a fanny pack onto the ground between some bushes and the main entrance of a nearby building. When the fanny pack hit the ground, a loaded Colt .38 caliber revolver with an obliterated serial number spilled out. An inquiry into Rivera-Cruz's criminal history revealed that he had been convicted of a number of crimes punishable by a term of imprisonment exceeding one year, including, inter alia, robbery, attempted robbery, and attempted aggravated breaking and entering.

         B. District Court Proceedings

         A grand jury indicted Rivera-Cruz, charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Following unsuccessful plea negotiations, the district court scheduled Rivera-Cruz's trial to begin on Monday, April 11, 2016. On Friday, April 8, 2016, Rivera-Cruz's attorney filed a motion stating that Rivera wished to request "a hearing where he [could] explain to the Court the reasons behind his dissatisfaction with his undersigned counsel." Rivera-Cruz claimed that he was dissatisfied with defense counsel because the only plea offer defense counsel was able to extract from the government was "a ...


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