FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [HON. FRANCISCO A. BESOSA, U.S. DISTRICT JUDGE]
Richard B. Klibaner and Klibaner & Sabino on brief for
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, John A. Mathews II,
Assistant United States Attorney, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on
brief for appellee.
Howard, Chief Judge, Kayatta, Circuit Judge, and Torresen,
[*] Chief U.S.
TORRESEN, CHIEF DISTRICT JUDGE.
Axel Irizarry-Rosario challenges his 84-month sentence for
possession of firearms on the grounds that the government
breached its plea agreement with him. Finding no error, we
September 15, 2016, Irizarry-Rosario pleaded guilty to a
two-count indictment entered after a police search of his
residence uncovered six guns, a significant amount of
ammunition, and eighty-two small bags of cocaine. Count I of
the indictment charged Irizarry-Rosario with possessing
firearms in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A)(i). Count II
charged the possession of cocaine with intent to distribute
in violation of 21 U.S.C. § 841(a)(1).
Count I, the parties' plea agreement stipulated that the
government would recommend a sentence of sixty months, the
minimum term of imprisonment required by 18 U.S.C. §
924(c). For Count II, the parties agreed that
Irizarry-Rosario's Base Offense Level under U.S.S.G
§ 2D1.1 was twelve and that his Total Offense Level was
ten. The parties did not stipulate to a Criminal History
Category. However, the parties agreed that if the district
court found that Irizarry-Rosario fell within Criminal
History Category I, then under the sentencing guidelines
Irizarry-Rosario's sentencing range would be six to
twelve months. The plea agreement provided that
Irizarry-Rosario would seek a sentence at the lower end of
this range and that the government would argue for a sentence
at the higher end. The parties also agreed that any
recommendation by either party for a term of imprisonment
below or above the stipulated sentence recommendations would
constitute a material breach of the plea agreement.
Irizarry-Rosario's sentencing hearing, the government
kept its arguments brief. The prosecution began by stating
that the parties had entered into a plea agreement and that
for Count I, "we are going to be requesting 60
months." The following exchange ensued:
[THE GOVERNMENT]: However, for the cocaine count, the Defense
can request 6 months and the Government can request up to 12
months. The Government encourages the Court to sentence the
Defendant in the higher end of those 12 months based on the
sheer volume and quantity of firearms that were seized, and
the ammunition that was seized. We are not talking about
THE COURT: The higher end of the drug charge because of the
[THE GOVERNMENT]: The weapons is 60 months minimum statutory.
That's what we stand by. But, however, for the cocaine
count, in which there is a spread - there is a range from 6
to 12 months - we encourage the Court to sentence him to the
higher end of those 12 months based on the amount of firearms
that were seized, the amount of ammunition, and the magazines
that were seized in his house, Your Honor.
government offered nothing further. At the close of the
hearing, after finding that Irizarry-Rosario fell within
Criminal History Category I, the district court rehearsed the
relevant facts including the full list of firearms and the
number of rounds that the police had found in
Irizarry-Rosario's residence. ...