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United States v. Flete-Garcia

United States Court of Appeals, First Circuit

May 23, 2019

UNITED STATES OF AMERICA, Appellee,
v.
FULVIO FLETE-GARCIA, a/k/a Fubio, a/k/a Israel Pagan Torres, Defendant, Appellant.

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]

          Mark W. Shea, with whom Shea & LaRocque, LLP, was on brief, for appellant.

          Yael T. Epstein, Attorney, Tax Division, Department of Justice, with whom Richard E. Zuckerman, Principal Deputy Assistant Attorney General, S. Roberts Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section, Stanley J. Okula, Jr. and Alexander P. Robbins, Attorneys, Tax Division, and Andrew E. Lelling, United States Attorney, were on brief, for appellee.

          Before Kayatta, Circuit Judge, Souter, [*] Associate Justice, and Selya, Circuit Judge.

          SELYA, CIRCUIT JUDGE.

         Having identified defendant-appellant Fulvio Flete-Garcia as the architect of a massive swindle, the government charged him with a litany of fraud-based crimes. Following four days of trial, Flete-Garcia threw in the towel and entered a straight guilty plea to all 48 counts of the indictment. Prior to sentencing, though, Flete-Garcia experienced buyer's remorse and attempted to withdraw his guilty plea. The district court denied this motion, as well as sentencing-related motions for discovery and for an evidentiary hearing. It then sentenced Flete-Garcia to 132 months' imprisonment and ordered him to make restitution in the amount of $7, 737, 486.10. Flete-Garcia appeals, raising a gallimaufry of alleged errors. Finding his asseverational array long on perfervid rhetoric but short on substance, we affirm.

         I. BACKGROUND

         We briefly rehearse the background of this appeal, reserving further elaboration for our subsequent discussion of the issues. We draw the facts from the trial record, the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Arias-Mercedes, 901 F.3d 1, 4 (1st Cir. 2018); United States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir. 2017).

         For over half a decade, Flete-Garcia orchestrated and operated a lucrative tax-fraud conspiracy. To further this criminal enterprise, Flete-Garcia stole personal identification information (PII) from Puerto Rico residents and used this information to prepare and file fraudulent federal income tax returns.[1] These fraudulent returns generated refund checks, which Flete-Garcia deposited (through intermediaries) for his own benefit.

         Flete-Garcia's scheme involved a handful of co-conspirators. One such co-conspirator assisted in the preparation of the fraudulent tax returns, while others assisted by cashing refund checks. When a co-conspirator's accounts were frozen, Flete-Garcia simply moved on to another individual and another set of accounts.

         Flete-Garcia's scheme was nothing if not ambitious. In hindsight, the government says that it has been able to account for over $7 million in funds fraudulently obtained from the Internal Revenue Service (IRS) as well as $5 million, more or less, that would have been paid but for the detection of the fraud.

         The plucked chickens eventually came home to roost. On March 9, 2017, a federal grand jury sitting in the District of Massachusetts returned a 48 count superseding indictment charging Flete-Garcia with conspiracy to defraud the United States (count 1), see 18 U.S.C. § 371; access device fraud (counts 2 and 3), see id. § 1029; conversion of government property (counts 4 through 20), see id. § 641; aggravated identity theft (counts 21 through 37), see id. § 1028A; and money laundering (counts 38 through 48), see id. § 1956(a)(1)(B)(i). Flete-Garcia initially maintained his innocence, a jury was empaneled, and trial commenced on July 10, 2017. During the first four days of trial, the government presented the bulk of its evidence (including nineteen of twenty-three witnesses), and Flete-Garcia cross-examined nearly all of the government's witnesses. As the fourth day of trial wound down, Flete-Garcia indicated that he wished to change his plea. He told the court that no one had pressured him into this decision but, rather, he had "started thinking about [his] family."

         The district court engaged in a careful change-of-plea colloquy, see Fed. R. Crim. P. 11, and Flete-Garcia admitted his guilt with respect to all 48 counts. Once the court accepted the plea, it discharged the jury.

         Shortly thereafter, Flete-Garcia retained new counsel. He also wrote a pro se letter to the district court maintaining that his trial was tainted and that he wanted to "null[] or void" his guilty plea. The court advised both Flete-Garcia and his new lawyer that it considered this letter to be without force and that any plea-withdrawal motion should be made by counsel. Relatedly, the court postponed sentencing at Flete-Garcia's request.

         Flete-Garcia's new lawyer filed a flurry of motions. These filings included a motion to withdraw Flete-Garcia's guilty plea, a motion to compel discovery, and a motion for an evidentiary hearing to determine the amount of loss. Meanwhile, the probation office prepared the PSI Report, which (when issued) recommended certain guideline calculations. The probation office began its calculations by constituting a single group comprising counts 1 through 20 and counts 38 through 48. See USSG §3D1.2(c), (d). It then formed a second group comprising counts 21 through 37. See id. §2B1.6. Because the offense level for the money laundering counts contained in the first group carried the highest offense level, the PSI Report calculated the guideline sentencing range (GSR) by reference to those counts. See id. §3D1.3(a). The ensuing calculation started with a base offense level of 6, see id. §2B1.1, and added several enhancements. These included a twenty-level enhancement for amount of loss, see id. §2B1.1(b)(1)(K); a two-level enhancement because the offenses of conviction involved more than ten victims, see id. §2B1.1(b)(2)(A)(i); a four-level enhancement for Flete-Garcia's leadership role, see id. §3B1.1(a); and a two-level enhancement because the money laundering convictions implicated 18 U.S.C. § 1956, see USSG §2S1.1(b)(2)(B). As an offset, the PSI Report recommended a two-level reduction for acceptance of responsibility. See id. §3E1.1(a).

         These calculations yielded a total offense level of 32 which, coupled with a criminal history category of III, produced a GSR of 151-188 months. To complete the picture, the PSI Report recommended restitution in the amount of $7, 737, 486.10.

         Flete-Garcia objected to many aspects of the PSI Report, including (as pertinent here) the enhancements for number of victims and amount of loss. He also objected to the restitution amount.

         On December 18, 2017, the district court denied Flete-Garcia's motion for an evidentiary hearing concerning amount of loss. Two days later, the court convened the disposition hearing. At that time, it heard and denied Flete-Garcia's remaining motions, including his motion to withdraw his guilty plea and his motion to compel discovery. The court also heard and rejected Flete-Garcia's renewed arguments as to why an evidentiary hearing would be useful in determining amount of loss.

         The district court then turned to the task of fashioning Flete-Garcia's sentence. After entertaining additional arguments from both sides, the court accepted most of the guideline calculations limned in the PSI Report. The court, however, sustained the government's objection and ruled that Flete-Garcia - who had only pleaded guilty near the end of the trial and thereafter had sought to unbuckle himself from his guilty plea - was not entitled to an offense-level reduction for acceptance of responsibility.

         The district court proceeded to sentence Flete-Garcia to a downwardly variant 132-month term of immurement and ordered him to make restitution in the amount of $7, 737, 486.10. This timely appeal followed. In it, Flete-Garcia calumnizes his conviction and sentence on several fronts. We start with his claim that he should have been allowed to withdraw his guilty plea. Next, we deal with his claims of sentencing-related error (including those arising out of the denial of his motions for discovery and for an evidentiary hearing). We then treat with his attack on the restitution order and end with his ineffective assistance of counsel claim.

         II. WITHDRAWAL OF GUILTY PLEA

         Because Flete-Garcia's motion to withdraw his guilty plea was filed before the imposition of sentence, it is governed by Federal Rule of Criminal Procedure 11(d)(2)(B). Under this rule, "[a] defendant may withdraw a plea of guilty . . . after the court accepts the plea, but before it imposes sentence if . . . the defendant can show a fair and just reason" for its withdrawal. Despite its permissive nature, this standard "does not endow [a defendant] with an unfettered right to retract a guilty plea." United States v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014). The devoir of persuasion rests with the movant, and we review the district court's denial of such a motion solely for abuse of discretion. See id.

         A court's scrutiny of a plea-withdrawal motion must take into account the totality of the relevant circumstances. See id.; see also United States v. Caramadre, 807 F.3d 359, 366 (1st Cir. 2015). This canvass includes consideration of whether the plea was voluntary, intelligent, and knowing when tendered; the strength of the reason(s) proffered in support of the motion to withdraw; the timing of the request; and the force of any claim of actual innocence. See United States v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016) (per curiam); Merritt, 755 F.3d at 9. If the defendant makes a prima facie showing of an entitlement to relief, the court must then factor into the decisional calculus the prejudice, if any, that may accrue to the government as a result of allowing the plea to be withdrawn. See Merritt, 755 F.3d at 9.

         In the district court - as here - Flete-Garcia complained that his guilty plea was neither intelligent nor knowing because "he did not understand many of the important aspects of the Rule 11 hearing." The district court rejected this conclusory plaint, finding that the plea was suitably informed and not the product of any coercion. In the court's view, it was manifest that Flete- Garcia had fully considered the decision to change his plea, understood the nature and scope of his plea, and had not made the decision in the heat of the moment. Moreover, Flete-Garcia's proffered reason for withdrawing his plea was weak, especially since his decision to plead was reached after hearing the bulk of the government's evidence and an outline of the proof that remained. See Fernández-Santos, 856 F.3d at 16-17. Finally, the court noted that Flete-Garcia had made no claim of actual innocence.

         Flete-Garcia asserts that the district court's refusal to allow him to retract his guilty plea was an abuse of discretion because he was confused about the factual basis for counts 2 and 3 - and the district court compounded his confusion by "constrain[ing]" him to "short yes or no answers." This assertion is belied by the record. The transcript of the Rule 11 hearing makes pellucid that even though Flete-Garcia's responses to some of the district court's questions warranted further inquiry, the court conducted just such an inquiry. It patiently explained and re-explained the nature of the offenses to which Flete-Garcia was pleading and recounted the implications that would follow.

         An example illustrates the district court's approach. When the court asked Flete-Garcia whether he agreed to the factual basis for counts 2 and 3 (specifically, that he had possession of two lists of stolen PII), Flete-Garcia replied that he did not "know where [the government] got that from." In response, the court reminded Flete-Garcia that he did not have to plead guilty, that he could elect to resume the trial, and that he had the option of pleading guilty to some charges and continuing to contest the others. The court also restated the charges that Flete-Garcia had questioned (counts 2 and 3) and summarized the evidence underpinning those charges. At that point, Flete-Garcia reaffirmed his desire to plead guilty and admitted to the factual basis for all of the charges.

         In the last analysis, Rule 11 requires a district court to ensure that the defendant both knows and understands the nature of the charges to which he is pleading. See Fed. R. Crim. P. 11(b)(1)(G). This does not mean, though, that Rule 11 is off the table simply because a defendant indicates some uncertainty about the factual basis for a proposed guilty plea. Where, as here, the court resolves such uncertainties to the defendant's expressed satisfaction through clarification and explanation, a guilty plea may qualify as voluntary, intelligent, and knowing. See United States v. Ramos-Mejía, 721 F.3d 12, 15 (1st Cir. 2013).

         This is such a case, and Flete-Garcia offers no plausible basis for concluding that he did not fully understand the charges against him.[2] At any rate, all indications are to the contrary: he was present during jury selection and nearly four full days of trial, heard the prosecutor's opening statement and the testimony of nineteen of the government's twenty-three witnesses (including some who testified about the stolen PII), and listened as the prosecutor summarized the remaining evidence at the Rule 11 hearing. Additionally, the district court explained all of the charges to Flete-Garcia as well as the consequences of changing his plea.

         We find hollow Flete-Garcia's protestation that he felt constrained by the district court to respond with yes or no answers. To be sure, the district court kept a rather tight rein on the colloquy - a commendable practice given that an empaneled jury was being held in limbo. But the court did no more than was reasonably necessary to keep the proceedings on track, and we discern no error in its management of the Rule 11 hearing. Viewed objectively, the court's dialogue with Flete-Garcia adroitly balanced its obligation to ensure that the plea was voluntary, knowing, and intelligent against the need for the fair and orderly administration of the Rule 11 hearing.

         The short of it is that here, as in Dunfee, Flete-Garcia "affirmatively declared under oath at a properly conducted Rule 11 hearing that he was guilty of the crimes with which he was charged." 821 F.3d at 128. In the absence of any plausible basis for discounting them, the district court was "entitled to give weight to the defendant's statements at his change-of-plea colloquy." United States v. Santiago Miranda, 654 F.3d 130, 138 (1st Cir. 2011). On this record, we discern nothing approaching an abuse of discretion in the district court's determination that Flete-Garcia had failed to show a fair and just reason for withdrawing his plea.[3]

         III. CERTAIN SENTENCING RELATED MATTERS

         Flete-Garcia offers up a salmagundi of claims relating to certain matters adjudicated in connection with the sentencing hearing. We subdivide our discussion of these claims into discrete segments.

         A. Enhancement for Number of Victims.

         We start with Flete-Garcia's challenge to the district court's application of a two-level enhancement for crimes involving ten or more victims. See USSG §2B1.1(b)(2)(A)(i). For this purpose, a victim is described as "any individual whose means of identification was used unlawfully or without authority." Id. §2B1.1, app. n.4(E)(ii). Because Flete-Garcia preserved this claim of error below, we review the district court's factual findings for clear error and its application of the law (including its application of the sentencing guidelines) de novo. See United States v. Carbajal-Váldez, 874 F.3d 778, 782-83 (1st Cir. 2017), cert. denied, 138 S.Ct. 2586 (2018); United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017).

         We have made pellucid that "[c]lear error is not an appellant-friendly standard." Carbajal-Váldez, 874 F.3d at 783. This demanding standard is satisfied only when, "upon whole-record-review, an inquiring court 'form[s] a strong, unyielding belief that a mistake has been made.'" Nuñez, 852 F.3d at 144 (alteration in original) (quoting United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). If two plausible but competing inferences may be drawn from particular facts, a sentencing court's choice between those two competing inferences cannot be clearly erroneous. See id. at 146; United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

         It is by now familiar lore that the government bears the burden of proving the applicability of a sentencing enhancement. See United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014). "It must carry this burden by a preponderance of the evidence." Id.

         In this instance, it is nose-on-the-face plain that more than ten people were affected by Flete-Garcia's scheme. After all, Flete-Garcia stole PII relating to hundreds of individuals, used the stolen PII corruptly, and pleaded guilty to no fewer than seventeen counts of aggravated identity theft. Undaunted by these ironclad facts, Flete-Garcia rests his claim of error on language in the sentencing guidelines. With respect to aggravated identity theft, the guidelines link the term of immurement to the statute of conviction. See USSG §2B1.6(a). In this case, the statute requires a mandatory two-year term for a defendant who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A.

         But there is a rub: an application note instructs that "[i]f a sentence . . . is imposed in conjunction with a sentence for an underlying offense," the sentencing court should "not apply any specific offense characteristic for the transfer, possession, or use of a means of identification" in fashioning the sentence for the underlying offense. USSG §2B1.6, app. n.2. In other words, the application note prohibits the enhancement of a sentence for the ...


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