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United States v. Mangual-Rosado

United States Court of Appeals, First Circuit

October 26, 2018

UNITED STATES OF AMERICA, Appellee,
v.
VICTOR M. MANGUAL-ROSADO, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

          Luis A. Guzmán Dupont on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and B. Kathryn Debrason, Assistant United States Attorney, on brief for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         Victor M. Mangual-Rosado ("Mangual") pleaded guilty to one count of possessing a firearm while being an unlawful user of a controlled substance. He now appeals his sentence of 30 months' imprisonment on the grounds that it was procedurally and substantively unreasonable. For the reasons that follow, we affirm.

         I.

         On November 2, 2016, Mangual was indicted in the District of Puerto Rico for possession of a firearm and ammunition by an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3) and § 924(a)(2). Mangual does not dispute that, a week earlier, Puerto Rico Police Department officers had found Mangual sleeping on the couch at his friend's residence in possession of a Bushmaster rifle loaded with a large-capacity magazine and 30 rounds of .223 caliber ammunition. Pursuant to a plea agreement that Mangual signed on January 10, 2017, he pleaded guilty to knowingly and unlawfully possessing a firearm and ammunition while being an unlawful drug user and agreed to forfeit the rifle and ammunition. Mangual also agreed to a waiver-of-appeal provision.

         II.

         The government argues that the appeal waiver bars Mangual from appealing his sentence because the District Court imposed a sentence "within the bottom to middle of the applicable guideline range[, ]" and the plea agreement's waiver of appeal contemplated a sentence "in accordance with the terms and conditions set forth in the Sentence Recommendation provisions of this Plea Agreement." To this point, the government notes that the Sentence Recommendation provision of the plea agreement stated "that [the] defendant may request a sentence of imprisonment at the bottom of the applicable Guidelines range and that the Government may request a sentence of imprisonment up to the middle of the applicable Guidelines range."

         The sentence did fall within the bottom to middle of the sentencing guidelines range on which the District Court relied. The record shows, however, that the District Court did not use the same guidelines range that the parties used in making their sentencing recommendations in the plea agreement. Nevertheless, Mangual does not argue in his opening brief that the appeal waiver does not bar his appeal here. Nor, for that matter, does Mangual's argument refer to the appeal waiver at all. In fact, even though the government contends in its brief on appeal that the waiver to which Mangual agreed does bar his appeal of the sentence, Mangual also did not file a reply brief.

         These failures are quite problematic for Mangual. We have made clear that "[w]here . . . the defendant simply ignores the waiver and seeks to argue the appeal as if no waiver ever had been executed, he forfeits any right to contend either that the waiver should not be enforced or that it does not apply." United States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007).

         But, we need not rely on the appeal waiver to dispense with Mangual's appeal. Even if we do consider the merits of his ...


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