FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Aida M. Delgado-Colón, U.S. District
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
Lynch and Lipez, Circuit Judges, and Ponsor, District Judge.
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.
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.
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.
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.
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
District Court Proceedings
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