US v. Murphy-Cordero

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [12-1477]

Case: 12-1477

Document: 00116533896

Page: 1

Date Filed: 05/24/2013

Entry ID: 5736062

United States Court of Appeals
For the First Circuit
No. 12-1477
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN MURPHY-CORDERO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]

Before
Torruella, Selya and Thompson,
Circuit Judges.

Joseph A. Boucher Martínez for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, for appellee.

May 24, 2013

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Document: 00116533896

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SELYA, Circuit Judge.

Date Filed: 05/24/2013

Entry ID: 5736062

This sentencing appeal presents a

modest set of issues that are susceptible to swift resolution.

We

briefly explain why we reject the defendant's appeal and affirm his
sentence.
Defendant-appellant John Murphy-Cordero, a/k/a Hot Dog,
pled guilty to a charge of conspiracy with intent to distribute
controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846,
and 860.

At sentencing, the district court fashioned a sentencing

enhancement for possession of a dangerous weapon (a gun) during and
in the course of the crime of conviction, see USSG §2D1.1(b)(1),
and constructed the guideline sentencing range accordingly.

The

court then imposed a 210-month incarcerative sentence. This timely
appeal ensued.
The

appeal

raises

three

issues.

We

treat

them

sequentially.
We start with an issue concerning the scope of the
appeal.

The defendant entered his guilty plea pursuant to a non-

binding plea agreement.

See Fed. R. Crim. P. 11(c)(1)(B).

The

plea agreement did not mention the possibility of a dangerous
weapon enhancement.

It did, however, contain a waiver-of-appeal

provision, which stated in pertinent part that if the district
court "accepts this Plea Agreement and sentences [the defendant]
according to its terms, conditions and recommendations, defendant

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waives and surrenders his right to appeal the judgment and sentence
in this case."
At the disposition hearing, the district court referenced
the waiver-of-appeal provision and suggested that it operated to
limit any appeal to the propriety of the newly emergent dangerous
weapon

enhancement.

The

defendant

objects

to

any

such

circumscription of his appeal.
The defendant's objection is well-founded.

The right to

appeal the imposition of a criminal sentence is a substantial right
and, thus, waivers of that right must be knowing, voluntary, and
unequivocal.

See United States v. Teeter, 257 F.3d 14, 24 (1st

Cir. 2001).

Moreover, waiver-of-appeal provisions, like other

terms and conditions memorialized in plea agreements, are construed
in accordance with contract-law principles.

See United States v.

Ortiz-Santiago, 211 F.3d 146, 151 (1st Cir. 2000).
Here, the plea agreement obligated both parties to
recommend to the district court "that defendant be sentenced to one
hundred

and

sixty-eight

(168)

months

of

imprisonment

should

defendant fall under Criminal History Category I, II or III."

The

district court found that the defendant was in Criminal History
Category

III,

but

nonetheless

eschewed

the

joint

sentencing

recommendation and sentenced him to a longer term of immurement:
210 months.

The court attributed the longer sentence to the

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dangerous weapon enhancement and suggested that any appeal would be
limited to testing the propriety of the enhancement.
The waiver-of-appeal provision does not make the fine
distinction envisioned by the district court.
language,

the

district

court's

rejection

Under its plain
of

the

168-month

sentencing recommendation — a material term of the plea agreement
— vitiated the waiver-of-appeal provision in its entirety.
United

States

v.

Obeid,

707

F.3d

898,

904

(7th

Cir.

Cf.
2013)

(explaining that "[t]he plain language of the [plea] agreement
controls so long as its terms are unambiguous"). Consequently, the
scope of this appeal is not circumscribed.
Although the defendant wins this battle, he loses the
war.

Each of his two remaining claims of error lacks force.

We

explain briefly.
First, the defendant challenges the two-level dangerous
weapon enhancement.

The applicable guideline provides that if,

during the course of the crime of conviction, "a dangerous weapon
(including a firearm) was possessed" by the defendant, a two-level
enhancement applies. USSG §2D1.1(b)(1). The defendant posits that
the record does not support the application of this guideline to
his case.

The defendant is wrong.
To begin, defense counsel admitted in the district court

that the defendant possessed firearms during the commission of the
offense of conviction.

This constituted a waiver of the claim of

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error that he now attempts to advance.

Entry ID: 5736062

See United States v.

Jiménez, 512 F.3d 1, 7 (1st Cir. 2007); United States v. Rodríguez,
311 F.3d 435, 437 (1st Cir. 2002).

In all events, the presentence

investigation report (PSI Report) specifically stated that the
defendant, as part and parcel of his criminal conduct, "would carry
and

possess

firearms

organization."

in

furtherance

of

the

drug

trafficking

The defendant did not object to any aspect of the

PSI Report's factual account, including the statement quoted above.
This circumstance, without more, constitutes a sufficient basis for
rejecting

the

defendant's

claim

of

error.

When

a

fact

is

specifically set out in a presentence investigation report and is
not the subject of a timely objection, the district court may treat
the fact as true for sentencing purposes.

See United States v.

Medina, 167 F.3d 77, 81 (1st Cir. 1999); United States v. Rosales,
19 F.3d 763, 770 (1st Cir. 1994).

It follows, therefore, that the

dangerous weapon enhancement was adequately grounded in the record.
This leaves only the defendant's plaint that the district
court did not sufficiently consider the factors limned in 18 U.S.C.
§ 3553(a) and, to make a bad situation worse, failed adequately to
explain its sentencing rationale.1

At the outset, we note that the

1

The sentencing factors set out in 18 U.S.C. § 3553(a)
include, as pertinent here:
(1) the nature and circumstances of the offense and
history and characteristics of the defendant; (2)
need for the sentence imposed-- (A) to reflect
seriousness of the offense, to promote respect for
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the
the
the
the

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defendant did not raise this multi-faceted objection (or any part
of it) in the court below.
error.

Our review is, therefore, for plain

See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001); United States v. Robinson, 241 F.3d 115, 119 (1st Cir.
2001).

There is no plain error here.
To be sure, a sentencing court is, as a general matter,

obliged to consider the section 3553(a) factors in formulating a
sentence.

See, e.g., United States v. Quiñones-Medina, 553 F.3d

19, 26 (1st Cir. 2009); United States v. Martin, 520 F.3d 87, 91
(1st Cir. 2008).

However, we have never required "an express

weighing of mitigating and aggravating factors."

United States v.

Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012).

Nor have we

decreed that each section 3553(a) factor must be "individually
mentioned" by the sentencing court.

Id.

This avoidance of

ironclad rules recognizes that "[a] sentencing court's process of
ratiocination can often be inferred by comparing what was argued by
the parties or contained in the presentence report with what the
judge did." United States v. Dávila-González, 595 F.3d 42, 48 (1st

law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant;
. . . (3) the kinds of sentences available; (4) the kinds
of sentence and the sentencing range established for
. . . the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . . ; (5) any pertinent policy statement
. . . issued by the Sentencing Commission . . . [;] (6)
the need to avoid unwarranted sentence disparities among
defendants with similar records . . . .
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Cir. 2010) (internal quotation marks omitted).

Entry ID: 5736062

Substance controls

over form.
In the case at hand, it is readily apparent that the
sentencing court considered the relevant section 3553(a) factors.
The record makes manifest that the court read the PSI Report and
exhibited a familiarity with its contents.
counsel's

detailed

allocution.

plea

for

leniency

and

It heard defense
the

defendant's

In the end, it took into account not only the

defendant's history, characteristics, and personal circumstances,
but also the nature and gravity of the offense.

It then imposed a

sentence at the nadir of the applicable guideline sentencing range.
We discern no error, plain or otherwise.
The defendant's related charge — that the court failed
adequately to explain the sentence — is equally unavailing.

In

this regard, the court stated succinctly:
This individual has a prior history of
convictions. He has seven prior arrests, and
only two convictions. He has a pending case
of firearms in state court. . . .
So what I will do is sentence him at
the lower end of the applicable guideline
range . . . .
This explanation, though terse, was sufficient.
especially

true

because

the

sentence

imposed

was

This is

within

the

guideline sentencing range. While the guidelines are advisory, see
United

States

v.

Booker,

543

U.S.

220,

245

(2005),

and

the

guideline sentencing range is not controlling with respect to the
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reasonableness of a particular sentence, see United States v.
Gates, 709 F.3d 58, 71 (1st Cir. 2013); United States v. JiménezBeltre, 440 F.3d 514, 517-18 (1st Cir. 2006) (en banc), the fact
that a

sentence

is

within

a

properly

calculated

range

bears

directly on the needed degree of explanation: a within-the-range
sentence typically requires a less elaborate explanation than a
variant sentence.

See United States v. Madera-Ortiz, 637 F.3d 26,

30 (1st Cir. 2011); United States v. Turbides-Leonardo, 468 F.3d
34, 41 (1st Cir. 2006).

Where, as here, a sentencing court offers

a plausible rationale in support of a within-the-range sentence, it
need not wax longiloquent.

In this context, as elsewhere, brevity

is sometimes a virtue rather than a vice.
We need go no further. For the reasons elucidated above,
the defendant's sentence is summarily affirmed.
27.0(c).

Affirmed.

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See 1st Cir. R.