APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District
W. Shea, with whom Shea & LaRocque, LLP, was on brief,
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
Kayatta, Circuit Judge, Souter, [*] Associate Justice, and Selya,
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.
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).
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. These fraudulent returns generated refund
checks, which Flete-Garcia deposited (through intermediaries)
for his own benefit.
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.
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.
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."
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.
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.
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).
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,
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.
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.
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.
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
WITHDRAWAL OF GUILTY PLEA
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.
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.
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
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
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.
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).
such a case, and Flete-Garcia offers no plausible basis for
concluding that he did not fully understand the charges
against him. 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.
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
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
CERTAIN SENTENCING RELATED MATTERS
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
Enhancement for Number of Victims.
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).
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).
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.
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.
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 ...