US v. Bauzo-Santiago

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-1280]

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Document: 00117186651

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Date Filed: 08/08/2017

Entry ID: 6111362

United States Court of Appeals
For the First Circuit
No. 15-1280
UNITED STATES OF AMERICA,
Appellee,
v.
JAIME BAUZÓ-SANTIAGO,
Defendant-Appellant.

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

Before
Torruella, Thompson, and Barron,
Circuit Judges.

Jorge E. Rivera-Ortíz for appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Nelson Pérez-Sosa, Assistant United States
Attorney, were on brief, for appellee.

August 8, 2017

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THOMPSON, Circuit Judge.

Date Filed: 08/08/2017

Entry ID: 6111362

The case up today presents us

with a cautionary tale of what not to say and who not to say it
to, and the consequential aftermath which can flow from such a
slip-up.

Here's what happened.
BACKGROUND1
On July 24, 2012, a Puerto Rico Police officer out on

patrol watched Bauzó pull a pistol out of the waistband of his
pants and pitch it into a black SUV.

The officer approached Bauzó

and asked him whether he had a license to carry a firearm.
Bauzó said no (spoiler alert:

When

this isn't "THE" slip-up; read on)

the officer walked over to the SUV, opened the door, and spotted
the gun on the floor of the driver's side of the car.
seized the gun and arrested Bauzó.
officer read Bauzó his rights.

The officer

At the police station, an

Then (spoiler alert:

this isn't

"IT" either) Bauzó admitted he was carrying the pistol for his
protection (he sold jewelry and clothing).
At some point before trial would begin, Bauzó (via his
court-appointed

attorneys)

and

the

1

government

discussed

the

Favorably to Bauzó, and because our presentation of the
facts does not impact the outcome of his appeal, we present the
few facts necessary to understand this case in a balanced manner.
See, e.g., United States v. Gonsalves, 859 F.3d 95, 99 n.1 (1st
Cir. 2017) (citing United States v. Rodríguez-Soler, 773 F.3d 289,
290 (1st Cir. 2014) and United States v. Burgos-Montes, 786 F.3d
92, 99 (1st Cir. 2015)) (taking a similar tack in similar
circumstances and noting lack of clarity on how we present facts
in cases where defendant does not challenge the sufficiency of the
evidence).

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possibility of a guilty plea.

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But apparently things weren't going

so well between Bauzó and his lawyers.

In an ex-parte motion to

withdraw, Bauzó's attorneys stated, "[Bauzó] believes that his
counsels have not worked diligently in negotiating a plea agreement
and he does not trust their professional opinions"; his "animosity
toward them is evident."

The motion went on, the attorneys had

visited Bauzó in prison on March 7 and 11, 2014, "intend[ing] to
discuss separate plea offers extended by the government," but Bauzó
"completely discarded the offers tendered by counsels."

The

attorneys also complained that Bauzó had no interest in helping
them prepare for trial.
trial

court

via

the

Bauzó said he had sent a motion to the
prison

mail

system

but,

the

attorneys

continued, the motion's "content is unknown."
On May 20, 2014, a hand-written letter (reader--this is
"THE SLIP") postmarked March 12, 2014, was entered on Bauzó's
docket as a motion to appoint counsel.

Bauzó was identified as

the author, and the letter was addressed to Judge Carmen Consuelo
Cerezo (the judge presiding over Bauzó's case at the time). Here's
what that letter said:
I have a situation with my lawyer . . . he has no
interest in my case [and] I do not have good
communications with the lawyer . . . Because of
these reasons I would like to ask of the Honorable
Judge to change counsel . . . if possible. I want
to take advantage to notify you that I, Jaime Bauzó
Santiago
.
.
.
have
always
accepted
my
responsibility as to guilt, the only thing that I

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ask of you is that the time for the weapons law
crime be a reasonable one.
The letter was signed "Jaime Bauzó Santiago."
The trial court granted Bauzó's now-ex lawyers' ex-parte
motion to withdraw and appointed new counsel on May 28, 2014.
Trial Proceedings
Fast forward four months. No plea deal had been reached,
and the government (in preparation for trial) added the March 12th
letter to its trial exhibit list.

Bauzó filed a motion in limine

to exclude the letter "purportedly sent" by him--he claimed it was
a statement made during plea negotiations under Federal Rule of
Evidence 410, its admission would be unfairly prejudicial under
Rule 403, and that under either rule the government should not be
allowed to introduce the letter.

The court denied his motion.

At trial, the government moved to admit the letter into
evidence as exhibit 3.

By way of foundation, an agent with the

Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") who
worked on Bauzó's case testified that he went to the clerk's
office, requested a copy of Docket Entry 94, and received Bauzó's
letter.

Bauzó objected and asked the government to explain how it

intended to authenticate the letter as a document written by him.
The government countered that it was for "the jury to decide and
give the weight they can give to that handwriting and statement
admission."

The

court

noted

that

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the

letter

bore

Bauzó's

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signature, overruled his objection, and permitted the government
to admit the letter.

The admitted version, redacted to remove any

reference to plea bargaining or the dispute between Bauzó and his
lawyers, read in relevant part as follows:

"I want to take

advantage to notify you that I, Jaime Bauzó Santiago . . . have
always accepted my responsibility as to guilt for the weapons law
crime."

On cross-examination, the agent said he did not know who

wrote the letter, or whether the signature and handwriting were
authentic--he just picked it up at the clerk's office.

Then at

the government's request--and with no objection from Bauzó--the
court took judicial notice of the fact that "Judge Cerezo was the
original judge assigned to this case . . . and that this document,
docket number 94, is still part of the docket of the case."

Later,

the government introduced a copy of the Miranda warnings that Bauzó
signed at the station.

A second ATF agent testified that she

witnessed Bauzó sign the warnings and write his name.
The government put on other evidence in its case against
Bauzó that is relevant to our task here on appeal.

Most notably,

the jury heard testimony from the Puerto Rico Police officer who
saw Bauzó toss the gun, who arrested Bauzó, and to whom Bauzó
admitted that he did not have a license for the gun.
After the close of the evidence and the jury instructions
(which we address at greater length below), the jury convicted

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Bauzó of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1).
Sentencing
Bauzó was sentenced on February 12, 2015.
Sentence

Investigation

Report

("PSR")

determined

The Prethat

Bauzó

qualified as a career criminal under the Armed Career Criminal Act
("ACCA") because he had at least three violent felony convictions.
We will get into the particulars of his sentence later; for now we
note only that the court did not indicate which of Bauzó's prior
convictions were predicates, and that Bauzó did not object to his
career-offender categorization.
a

mandatory-minimum

sentence

As a result, Bauzó was subject to
of

fifteen

years

offender Guidelines sentencing enhancement.

and

a

career-

Ultimately, he was

sentenced to fifteen years and eight months in prison.
Bauzó appealed, and that brings us up to today.
ANALYSIS
Here on appeal, Bauzó raises three challenges to what
happened below.

First, he argues that the district court erred by

admitting his letter under Rule 410.

Second, he challenges the

district court's end-of-trial judicial-notice jury instruction,
claiming it made the jury think he wrote the letter (and so
admitted to doing the crime he was on trial for committing).

And

finally, he says the court erred in finding that he qualified as
a career criminal.

We review each of these challenges in turn,

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but finding none have merit, we reject them all and affirm his
sentence.
The Letter
Bauzó argues that the district court erred by admitting
his letter under Rule 410, which prohibits the use of certain pleabargain-related
proceedings.

statements

against

a

defendant

Specifically,

Bauzó

claims

that

in

the

later

letter's

admission was contrary to Rule 410's purpose of encouraging plea
bargaining, so the district court erred by letting the government
use it against him at trial as evidence of his guilt.

The

government disagrees with Bauzó about the purpose of the rule, and
further contends that because the letter is admissible under the
rule's plain language, the court did not err in admitting it.
We review a district court's evidentiary rulings for
abuse of discretion.

Burgos-Montes, 786 F.3d at 114.

This ruling

rested on an interpretation of law, so we review that de novo.
Id.

We find that the district court did not abuse its discretion

in admitting the letter.

Here is why Bauzó's arguments don't hold

water.2

2

We note that Bauzó did not challenge the act that brought
the letter to the government's attention to begin with--the
district court's entry of the letter on the public docket. The
defendant's apparent purpose in writing the letter was to ask for
Judge Cerezo's help in securing adequate representation, so making
this letter available to the government--then permitting the
government to use the letter against Bauzó--may undermine Bauzó's
Sixth Amendment right to representation.
Cf. United States v.
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The
enactments,

so

interpretation

Federal
we
to

Page: 8

Rules

apply

of

the

determine

Date Filed: 08/08/2017

Evidence

traditional

their

meaning

are
tools
and

Id.

congressional
of

statutory

scope.

Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988).
start with the text of the rule.

Entry ID: 6111362

Beech

That means we

We must give effect to the

rule's plain meaning, "unless it would produce an absurd result or
one manifestly at odds with the [rule's] intended effect."

Colón-

Marrero v. Vélez, 813 F.3d 1, 11 (1st Cir. 2016) (quoting Arnold
v. United Parcel Serv., Inc., 136 F.3d 854, 858 (1st Cir. 1998)).
Indeed, "resort to legislative history typically is inappropriate
when the meaning of a [rule] is plainly discernible from its
words." United States v. Rivera, 131 F.3d 222, 226 (1st Cir. 1997)
(en banc).

In considering the meaning of the text, we read a

legislative enactment as a whole, "since the meaning of statutory
language, plain or not, depends on context."

Id. at 225 (quoting

Conroy v. Aniskoff, 507 U.S. 511, 515 (1993)).

We consider the

rule's history, too, bearing in mind that we must read an amendment
to mean that the legislature intended a substantive change in the
law.

Ross v. Blake, 136 S. Ct. 1850, 1858 (2016).

Beverly, 993 F.2d 1531, at *1 (1st Cir. 1993); United States v.
Aguirre, 605 F.3d 351, 358 (6th Cir. 2010) (holding that where a
defendant "has disclosed truthful information to demonstrate
financial inability [to] obtain counsel under the Sixth Amendment,
that information may not thereafter be admitted against him at
trial on the issue of guilt"). But again, Bauzó raised no such
argument on appeal, so we leave it at that.

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So, we start with the text of the relevant portion of
Rule 410, which prohibits the government from using, in a criminal
case against a defendant who participated in plea discussions, "a
statement made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a guilty
plea or they resulted in a later-withdrawn guilty plea."
Evid. 410(a)(4).

Fed. R.

Bauzó rightly concedes that the plain language

of the rule did not require the judge to exclude his letter--after
all, Bauzó wrote it to the trial judge, not to "an attorney for
the prosecuting authority" as the rule plainly requires.

As the

government points out, we've been sticklers about that requirement
in the past.

Rule 410 "has been consistently interpreted by the

courts to protect only those statements made by a defendant to the
prosecuting attorney [herself]."

United States v. Pérez-Franco,

873 F.2d 455, 461 (1st Cir. 1989) (collecting cases finding plearelated statements to non-prosecutors admissible); see United
States

v.

Aponte-Suárez,

905

F.2d

483,

493

(1st

Cir.

1990)

("[Defendant's] statement was made to government agents, not to an
attorney.

That alone removes the statement from the purview of

Rule 410[a](4).").

Ordinarily that would be the end of the

inquiry.
But, Bauzó argues that the text is not determinative
because the admission of his letter under this plain-meaning
interpretation undermines the very purpose the rule was written to

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His contention obliges us to consider the history of the

rule to determine "whether there is a clearly expressed legislative
intention contrary to the [rule's] language, which would require
[the court] to question the strong presumption that Congress
expresses its intent through the language it chooses."

Rivera,

131 F.3d at 226 (second alteration in original) (citation and
internal quotation marks omitted).

As Bauzó points out, the

purpose of Rule 410 is "the promotion of [the] disposition of
criminal cases by compromise . . . . [Indeed,] [e]ffective criminal
law administration in many localities would hardly be possible if
a large proportion of the charges were not disposed of by such
compromises."

Fed. R. Evid. 410 advisory committee's note to 1972

proposed rules (citation omitted).
to

the

functioning

of

the

Plea bargaining is "essential

criminal

justice

system[,

'[p]roperly administered . . . it is to be encouraged.'"

and]
United

States v. Penta, 898 F.2d 815, 817 (1st Cir. 1990) (quoting
Santobello v. New York, 404 U.S. 257, 260 (1971)).
exclusionary

rule

furthers

the

purpose

of

Rule 410's

encouraging

plea

negotiations by shielding plea-seeking defendants from one risk of
dishing to the other side--after all, if a defendant thought his
plea-bargain pillow talk with the prosecutor would be turned
against him in a later prosecution, that defendant might just keep
his lips zipped.

See id. (discussing analogous provision of Fed.

R. Crim. P. 11); Fed. R. Crim. P. 11 advisory committee's note to

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1979 amendments (purpose of Rule 410 is "to permit the unrestrained
candor which produces effective plea discussions");3 United States
v.

Stirling,

571

F.2d

708,

731

(2d

Cir.

1978)

("[F]or

plea

bargaining to work effectively and fairly, a defendant must be
free to negotiate without fear that his statements will later be
used against him." (quoting Herman, 544 F.2d at 796)).
Consistent with Bauzó's proposed reading of Rule 410's
purpose, the rule once provided that "an offer to plead guilty
. . . to the crime charged or any other crime, or . . . statements
made in connection with . . . [such a] plea[] or offer[], is not
admissible in any civil or criminal action . . . against the person
who made the plea or offer."

Act of Jan. 2, 1975, Pub. L. No. 93-

595, 88 Stat. 1926; see Herman, 544 F.2d at 795 n.7 (discussing
statutory history of the rule between 1975 and 1976).

Bauzó's

letter may well have been excluded under this version of the rule-indeed,

his

letter

may

well

be

inadmissible

under

the

pre-

amendment-410 analogues in effect in some states today. See, e.g.,

3

We refer to the history of Federal Rule of Evidence 410 and
Federal Rule of Criminal Procedure 11 interchangeably here
because, as originally enacted, Rule 410's provisions were to be
"superseded by any inconsistent amendment" to Rule 11, United
States v. Herman, 544 F.2d 791, 795 n.7 (5th Cir. 1977), superseded
by Fed. R. Crim. P. 11(e) as recognized in Penta, 898 F.2d at 818,
and for many years the two were "substantively identical," United
States v. Mezzanatto, 513 U.S. 196, 200 (1995). See also PérezFranco, 873 F.2d at 460 n.6 (noting that Rule 410 conforms to Rule
11).
Today, Rule 11 simply provides that the admissibility of
plea-related statements is governed by Rule 410. Fed. R. Crim. P.
11(f).

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State v. Brown, 792 N.W.2d 815, 823 (Minn. 2011) (defendant's
response

to

judge's

questions

about

his

refusal

to

accept

government's plea deal inadmissible "statement made in connection
with an offer to plead guilty" under state rule identical to preamendment 410); Hill v. State, 768 So. 2d 518, 520 (Fla. Dist. Ct.
App. 2000) (defendant's letter to judge acknowledging wrongdoing,
offering to plead guilty held inadmissible under Fla. Stat. Ann.
§ 90.410 ("an offer to plead guilty" and "statements made in
connection with any of the pleas or offers" are "inadmissible in
any civil or criminal proceeding")); People v. Magana, 22 Cal.
Rptr. 2d 59, 61 (Ct. App. 1993) (observing that state rule barring
evidence of defendant's offers to plead guilty has applied to
affidavit submitted to trial court).
But here's the rub:

the rule was amended in 1979 to

clarify that it only excludes statements made to "an attorney for
the prosecuting authority."

Fed. R. Evid. 410(a)(4); see id.

advisory committee's note to 1979 amendments (rule changed to
mirror Fed. R. Crim. P. 11).

The rule's 1979 amendments were

designed to effectuate its purpose of producing "effective plea
discussions between the 'attorney for the government and the
attorney for the defendant or the defendant when acting pro se'"-a purpose the advisory committee thought was overshot by the
"broader rule of inadmissibility" derived from a "literal reading
of the language" of the original rule. Fed. R. Crim. P. 11 advisory

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committee's

note

to

1979

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amendments

(emphasis

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added);

see

2

McCormick on Evid. § 266 (Kenneth S. Broun, et al. eds., 7th ed.
2016); cf. Olsen v. Correiro, 189 F.3d 52, 60 (1st Cir. 1999)
(reach of Rule 410's plea-promotion policy is limited because "the
plain language of the rule reflects Congress's balancing of the
promotion

of

compromise

against

the

admission

of

relevant

evidence"). The substance of Rule 410 hasn't changed since. These
advisory committee notes confirm that the "legislative intention"
behind Rule 410 is reflected in the "language [Congress chose]"-to exclude only statements made to an attorney for the prosecuting
authority.

Rivera, 131 F.3d at 226 (citation omitted).

The

amendment was designed to limit the scope of the rule by describing
who the statement must be made to, and remember, we must read this
amendment to create a substantive change in the law.
136 S. Ct. at 1858.

See Blake,

So, the 1979 amendments doubly foreclose

Bauzó's argument.
One more thing convinces us that Bauzó's letter to the
judge is not covered by Rule 410 (though at this point we doubt we
need say more).

Federal Rule of Criminal Procedure 11(c)(1) tells

us what role the trial judge can have in plea negotiations:
absolutely none.

Although it was once a "common practice for a

judge to participate in plea discussions," Rule 11 was amended in
1974 to prohibit the practice.
committee's

note

to

1974

Fed. R. Crim. P. 11 advisory

amendments.

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That

means

that

the

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prohibition was already part of Rule 11 when it was amended in
1979 to protect only plea-related statements to the prosecutor.
See id.

And remember, Rule 410 was amended to bring it into line

with the text of Rule 11.

Rule 11 (circa 1979) read as a whole,

plus the parallel amendments to Rule 410, equal one more reason to
believe

that

Rule

410

today

statements made to the judge.

does

not

exclude

plea-related

And with that, Bauzó's policy

argument hits a dead end.
Bauzó raises two more points about Rule 410 that we
address before we move on.

First, he claims that United States v.

Gotti, 457 F. Supp. 2d 395, 402 (S.D.N.Y. 2006), supports his Rule
410 argument and dictates that the letter should be excluded--but
we disagree.

In Gotti, the court excluded the titular mob boss's

jailhouse statements that he wanted to "cop out" to the charges
against him--without "saying I did it"--under Rule 403.
400, 402.

Id. at

(For those not in-the-know, Federal Rule of Evidence

403 permits a trial court to exclude otherwise-relevant evidence
"if its probative value is substantially outweighed" by the danger
of "unfair prejudice" to the movant.)

But Gotti does not help

Bauzó at all because the Gotti court excluded the statements under
Rule 403, and Bauzó makes no 403-based argument here on appeal.

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Of course, arguments not raised in the briefs are waived.4

See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Bauzó also makes a backup argument--fairness dictates
that the letter be excluded.

This court has previously excluded

a defendant's plea-related confession because fairness required
it, even though the confession fell outside the letter of Rule
410:

in United States v. Ventura-Cruel, 356 F.3d 55, 62-63 (1st

Cir. 2003), the defendant wrote a confession to a probation officer
to mitigate his sentence after the district court accepted his
guilty plea, but when the court later rejected that plea it allowed
the government to introduce the letter at trial as evidence of the

4

Indeed, even if Bauzó had pressed a 403-based argument on
appeal, his case is not in lockstep with Gotti. The Gotti court
found the statements had essentially zero probative value as to
Gotti's guilt because they were "extraordinarily vague, lacking
any detailed admission of criminal conduct" and "undercut by
Gotti's denials that he committed the alleged crimes." Id. Plus,
the evidence was cumulative of other prosecution evidence that the
charges were weighing on Gotti's mind (the government's other
purported reason for admitting the statements).
Id.
As to
prejudice, the Gotti court thought Rule 410's policy in favor of
encouraging plea agreements weighed against admitting the
statements because it might allow the jury to unfairly infer the
defendant's guilt from his interest in "copping" a plea.
Id.
Bauzó seizes onto this policy point, arguing that here the jury
was permitted to infer his guilt from his interest in pleading
guilty, too. But Bauzó's case is distinguishable. Unlike Gotti,
who expressed interest in a plea and disclaimed any wrongdoing in
the same breath, Bauzó accepted responsibility for his crime in
the letter. So the jury is not inferring guilt simply from his
interest in pleading guilty, but from his admission to the charged
crime. In other words, unlike the statements in Gotti, Bauzó's
have some probative value. But again, Bauzó made no 403 argument
on appeal, so we give no opinion as to the merits of a hypothetical
403 claim.

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defendant's guilt.

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There the fairness problem was clear-cut:

after the court rejected defendant's plea, defendant was "deprived
of the benefit of his plea bargain but the government was permitted
to use his statements made in reliance on the bargain against him
at his subsequent trial" nonetheless.

Id. at 63-64.

The same

fairness concern does not come into play here because Bauzó was
not lured into confessing with assurances that it would lead to a
reduced sentence--he seems to have sent the letter completely of
his own volition.

Ventura-Cruel is simply not on Bauzó's level.

And Bauzó gives us no other reason to believe that it was unfair
for the court to admit the letter, except that the letter may have
helped convince the jury of his guilt.5

But that type of prejudice

is not sufficient reason to exclude an otherwise lawfully obtained
and voluntarily given confession.

See United States v. Munoz, 36

F.3d 1229, 1233 (1st Cir. 1994).
To sum up, the policy of the rule, if it is indeed
different from what is expressed in the text of the rule, does not
extend to require the exclusion of Bauzó's plea-seeking letter to
the judge.6

Nor does Bauzó's fairness argument give us reason to

5

Indeed, when pressed on his fairness rationale at oral
argument, Bauzó repeatedly circled back around to the prejudicial
effect of the confession. And we note here that Bauzó's letter
was not the only confession before the jury--the arresting officer
also testified that he saw Bauzó with the gun, and that Bauzó
admitted to carrying the gun.
6

The only federal authorities interpreting this prong of the
federal rule that we are aware of seem to have reached the same
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find that the letter should be excluded.

Entry ID: 6111362

So as is par for the

course in matters of statutory interpretation, the plain language
and statutory history of Rule 410 tell us what we need to know:
Bauzó's letter is admissible under the version of Rule 410 in
effect

today,

and

so

the

district

court

did

not

abuse

its

discretion in admitting the letter at trial.7
The Jury Instruction
Bauzó's next challenge is to the jury instruction on the
issue of judicial notice, which he claims is clearly erroneous and
so prejudicial that he is entitled to a new trial.

Here's the

challenged instruction:
Instruction #5:

Judicial Notice

I believe that the fact that Judge Cerezo was the
previous judge assigned to this case, that
proceedings were heard before her and before
Magistrate Judge Vélez-Rivé, that the transcripts
conclusion as we do, albeit in passing. United States v. Schuster,
706 F.3d 800, 805 n.3 (7th Cir. 2013) (finding defendant's letter
to judge, in which he admitted to crime but explained how bad he
felt about it in the hopes of mitigating his sentence, was not
inadmissible under Rule 410 because letter not a statement made in
plea discussions with the prosecutor); see also United States v.
Fernandez Martinez, 317 F. App'x 929, 938 (11th Cir. 2009) (letter
to magistrate judge not inadmissible under Rule 410 because court
cannot participate in plea discussions, magistrate not a
prosecutor, and plea discussions not ongoing).
7

Bauzó also contends that the district court erred in finding
he was not engaged in plea discussions at the time he sent the
letter. The letter's addressee--Judge Cerezo--is the dispositive
point here, even if Bauzó was engaged in plea negotiations with
the government at the time, so we need not address the argument.
See Aponte-Suárez, 905 F.2d at 493 (taking the same tack under
similar circumstances).

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used during the trial are official transcripts and
that the document admitted as government exhibit 3
is filed in the case as docket number 94 can be so
accurately and readily determined that it cannot be
reasonably
disputed.
You
may,
therefore,
reasonably treat these facts as proven, even though
no evidence has been presented on these points. As
with any fact, however, the final decision whether
or not to accept them is for you to make. You are
not required to agree with me.
Zeroing in on the phrase "can be so accurately and
readily determined that it cannot be reasonably disputed," in
conjunction

with

the

mention

of

the

letter,

Bauzó

says

the

instruction gave the jury the impression that the judge thought
Bauzó

penned

the

letter

reasonably disputed.

and

that

its

contents

could

not

be

So, he continues, the instruction improperly

directed the finding of a contested fact--whether Bauzó wrote the
letter accepting responsibility for the crime he was on trial for
committing--and

thereby

deprived

him

of

a

fair

trial.

The

government counters that Bauzó is misconstruing the instruction:
taken as a whole, the instruction simply explains that the judge
believed the letter was filed on the docket.

And that, the

government continues, is not an improper instruction.

We agree.

Bauzó did not object to the instruction at trial, so we
review his claim for plain error.8

"When applying the plain error

8

So to prevail on this claim, Bauzó "must show: (1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected [his] substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." United States v. Brown, 669 F.3d 10, 28 (1st Cir.
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standard in the context of jury instructions, [this court] look[s]
at the instructions as a whole to ascertain the extent to which
they adequately explain the law without confusing or misleading
the jury."
(1st

United States v. Candelario-Santana, 834 F.3d 8, 27

Cir.

2016)

(alterations

in

original)

(emphasis

added)

(quoting United States v. Fermin, 771 F.3d 71, 80 (1st Cir. 2014)),
cert. denied, 137 S. Ct. 1112 (2017).
This instruction adequately explains the law.

A trial

court judge "may judicially notice a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily
determined

from

questioned."

sources

whose

accuracy

Fed. R. Evid. 201(b)(2).

cannot

reasonably

be

And, if a judge takes

judicial notice of a fact in a criminal case, it "must instruct
the jury that it may or may not accept the noticed fact as
conclusive."

Id. 201(f).

Bauzó himself agrees that the fact of

the letter's docketing is a proper subject of judicial notice.9

2012) (quoting United States v. Fisher, 494 F.3d 5, 9 (1st Cir.
2007)).
9

Indeed, Bauzó's backup argument is that the instruction was
unnecessary because it was already given once before in what he
describes as a more "neutral" way: "Ladies and Gentlemen of the
Jury, I take judicial notice that Judge Cerezo was the original
judge assigned to this case, it was then transferred to me, and
that this document, docket number 94, is still a part of the docket
of the case." Of course, this instruction does not explain to the
jury the effect of judicial notice, nor does it explain what Rule
201 says a jury instruction must--that the jury need not accept
the noticed fact as true. See Fed. R. Evid. 201(f). In any case,
Bauzó does not explain why this mid-trial statement makes the endof-trial instructions erroneous, and undeveloped arguments are
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See Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) (courts
may

take

judicial

instruction,

notice

of

from

the

drawn

relevant
First

court

records).

Circuit's

pattern

The
jury

instructions, mirrors the language of the rule and accurately
states the law.

See Pattern Criminal Jury Instructions for the

District Courts of the First Circuit § 2.02; United States v.
Bello, 194 F.3d 18, 25-26 (1st Cir. 1999).

Bauzó does not argue

otherwise.
What's more, the instructions read as a whole do not
support Bauzó's interpretation.

The instruction at issue tells

the jury that the letter was entered on the district court's docket
as entry ninety-four.

And, the jury could treat that fact--the

letter's docketing--as proven if it wanted to.

The other facts

noticed in the instruction--all procedural matters like the name
of

the

previous

district

court

judge

and

the

transcripts were official--confirm this reading.

fact

that

the

The instruction

says nothing about the content of the letter, nor can it reasonably
be understood as an instruction that the contents of the letter
are true.

Accordingly, we cannot agree with Bauzó's contention

that the instruction directed the jury to find Bauzó authored the
letter, or that the instruction deprived him of a fair trial.

Cf.

Bello, 194 F.3d at 26 (judicial-notice instructions, even as to

waived.

Zannino, 895 F.2d at 17.

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elements of the crime, pose no constitutional concern where jury
instructed that it need not accept noticed element-establishing
fact as conclusive).
The instruction adequately explains the law and is not
confusing or misleading.

The instruction was not error--let alone

a plain or obvious one--so we reject this claim, too.
The Sentence
In his final point on appeal, Bauzó challenges his
sentence.

Bauzó's PSR found--and the parties agreed--that he had

at least three career-offender predicate convictions, so he was
sentenced as a career offender under 18 U.S.C. § 924(e)(1).10 Bauzó
now contends that the sentencing court erred in counting his prior
convictions as violent felonies.

The government argues that

Bauzó's arguments are waived, but that even if they are not his
claims cannot survive plain-error review.
question

first,

then

the

parties'

We address the waiver

arguments

about

Bauzó's

predicates.

10

Bauzó was also subject to a Guidelines sentencing
enhancement because he had "at least two prior felony convictions
of . . . a crime of violence." U.S. Sentencing Guidelines Manual
§ 4B1.1(a) (U.S. Sentencing Comm'n 2014). In part because of the
application of this enhancement, Bauzó received a Guidelines range
of 188 to 235 months--a range that exceeds his ACCA mandatoryminimum sentence of fifteen years, or 180 months.
Although he
mentions this point in his briefs, Bauzó's arguments are targeted
only at ACCA. The government follows suit. So do we--undeveloped
arguments are waived. See Zannino, 895 F.2d at 17.

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I. Waiver
The government's first line of attack:
is waived.

Bauzó's argument

As the government points out, Bauzó (via his court-

appointed attorney) identified himself as a career offender twice.
First, in his response to the government's motion to introduce his
letter, Bauzó pointed out that his "criminal history qualifies him
for the sentencing enhancement found" in 18 U.S.C. § 924(e)(1).
Second, when the sentencing judge pointed out that Bauzó "is an
armed

career

government

criminal,"

argues

these

Bauzó

responded

concessions

"[c]orrect."

amount

to

The

waiver--an

intentional relinquishment or abandonment of a known right--so we
cannot review his sentencing arguments on appeal.

See United

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).

Indeed,

"an explicit concession can waive both existing and yet-to-berecognized rights," and explicit concessions are exactly what we
have here.

United States v. Torres-Rosario, 658 F.3d 110, 116

(1st Cir. 2011) (finding defendant's ACCA argument waived where he
conceded career-offender status below, but excusing waiver in
interests of justice because of an intervening change in law).
For his part, Bauzó contends that we shouldn't hold him to his
concession. We have the discretion to excuse waiver "where justice
so requires," and Bauzó argues that justice requires us to forgive
this waiver because of an intervening change in the law (we get to
that below).

Id.

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But we need not decide whether Bauzó's argument is
irreparably waived because his sentencing argument cannot survive
even the plain-error standard of review we apply to forfeited
claims.

See United States v. Delgado-Sánchez, 849 F.3d 1, 7 (1st

Cir. 2017) (taking the same approach under similar circumstances).
Plain error requires Bauzó to show "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected [his]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of the judicial proceedings."
(citation omitted).

Id.

As we explain, even if the sentencing court

committed some error in assessing Bauzó's prior convictions, his
claim fails at the third prong because he has not shown--or even
argued--that any error affected his substantial rights.
II. ACCA Explainer--The Context for Bauzó's Claims
Before we get into the details of Bauzó's claims, here's
a brief ACCA primer to put his arguments in context.

As we

mentioned above, to qualify as a "career criminal" under the
statute--and be exposed to the mandatory-minimum sentence--the
government

must

convictions.
conviction

18

show

that

U.S.C.

qualifies

if

§

a

defendant

924(e)(1).
it

is

a

has
As

three

qualifying

relevant

"violent

here,

felony,"

a

id.

§ 924(e)(1)(B), meaning it has "as an element the use, attempted
use, or threatened use of physical force against the person of

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another," id. § 924(e)(2)(B)(i).11

Date Filed: 08/08/2017

Entry ID: 6111362

By physical force, the statute

means "violent force . . . capable of causing physical pain or
injury to another person."

Johnson v. United States (Johnson I),

559 U.S. 133, 140 (2010).

We determine whether an offense fits

the bill using the so-called categorical approach:

we check

whether the elements of the crime of conviction require the
government to prove the use, attempted use, or threatened use of
physical force in order to convict.

United States v. Castro-

Vazquez, 802 F.3d 28, 35 (1st Cir. 2015) (citing Descamps v. United
States, 133 S. Ct. 2276, 2283 (2013)). If the crime is divisible-meaning it defines multiple crimes with different elements--then
we follow the modified categorical approach.

United States v.

Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015).

That means we

look to certain documents known as "Shepard" documents (these
include the indictment, the jury instructions, and the like) to
determine

which

version

of

the

divisible-statute

crime

the

defendant committed, then check to see whether that version of the

11

A conviction might also qualify if it is a "serious drug
offense" or if it is one of the act's enumerated crimes of
"burglary, arson, or extortion, [or] involves use of explosives."
18 U.S.C. § 924(e)(1), 924(e)(2)(B)(ii). The former does not apply
here; the latter might--Bauzó has two prior convictions for
aggravated burglary--but because we find the sentencing court did
not commit a clear or obvious error in counting Bauzó's felony
assault and firearms offenses as violent felonies, we need not
reach the parties' burglary-related arguments.

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crime is a violent felony under the categorical approach.

Id.

(citing Descamps, 133 S. Ct. at 2281).
The statute also says that crimes involving "conduct
that presents a serious potential risk of physical injury to
another" (the "residual clause") are violent felonies, too.

18

U.S.C. § 924(e)(2)(B)(ii). But the residual clause was invalidated
as unconstitutionally vague in Johnson v. United States (Johnson
II), 135 S. Ct. 2551, 2563 (2015). So, this road to ACCA-qualifier
territory is now closed.
III. Bauzó's Predicates
Bauzó argues that he does not have three ACCA-qualifying
convictions so the sentencing court erred in considering him a
career offender.

His reasoning seems to go as follows:

His prior

convictions are divisible, so the sentencing court erred by failing
to apply the Descamps modified categorical approach to determine
whether any versions of his crimes of conviction were violent
felonies.

The sentencing court also failed to request the Shepard

documents to determine whether Bauzó was in fact convicted of a
career-criminal-qualifier

version

of

any

of

identified in the PSR, and that was error, too.
done

so,

it's

possible

that

the

court

qualifying convictions in Bauzó's record.

would

the

predicates

Had the court
not

find

three

Instead, the court's

career-criminal finding "appears to be implicitly premised on the
residual clause," which we now know to be unconstitutionally vague

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under Johnson II--yet another error, he says.
he

is

entitled

to

remand

for

resentencing.

Entry ID: 6111362

Ergo, Bauzó claims
The

government

disagrees, arguing that even if the court erred, Bauzó has not
shown that it impacted his substantial rights.
a) The Descamps Error
We start with the alleged error the parties spill the
most ink debating--whether the sentencing court erred in counting
Bauzó's priors as ACCA-qualifiers notwithstanding its failure to
follow the modified categorical approach.

Where the defendant's

prior convictions are under divisible statutes, the sentencing
court has committed a clear and obvious error in counting the prior
conviction as a predicate "only if we [are] confident that none of
the distinct offenses set forth" in the statute are violent
felonies.

Serrano-Mercado, 784 F.3d at 845 (applying plain-error

review to Guidelines career-criminal finding).12

Here, that is not

the case.
Bauzó has two prior convictions under Article 5.15 of
the Puerto Rico Penal Code for "discharging or pointing firearms."
P.R. Laws Ann. tit. 25, § 458n (2002).

He concedes that Article

5.15 is divisible--one version criminalizes willfully firing a gun

12

We note here, as we pointed out in Serrano-Mercado, that
ACCA's definition of a "violent felony" is "nearly identical" to
the Guidelines' definition of a "crime of violence," and so "courts
consistently have held that decisions construing one of these
phrases generally inform the construction of the other." 784 F.3d
at 843 n.4 (citation omitted).

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in a place where there is a person who could be harmed, and another
criminalizes intentionally pointing a gun towards a person.
Delgado-Sánchez, 849 F.3d at 10.

See

He claims that version two--

pointing--is not a violent felony because it does not include an
element of "violent force," that is force capable of causing pain
or physical injury.

But in Delgado-Sánchez, 849 F.3d at 11, we

recently held that it was not a clear or obvious error for the
sentencing court to count a conviction under version two of Article
5.15 as a crime of violence under § 4B1.2(a) of the Sentencing
Guidelines because pointing a gun towards a person could be a
"threatened use of physical force against the person of another."
(And

remember,

the

"threatened

satisfies § 924(e)(2)(B)(i).)

use

of

physical

force"

also

See also United States v. Collins,

811 F.3d 63, 67 (1st Cir.) (finding Maine's offense of criminal
threatening with a dangerous weapon is a crime of violence under
the Guidelines), cert. denied, 136 S. Ct. 2397 (2016). Bauzó gives
us no reason to second-guess that conclusion now.

Under Delgado-

Sánchez, the sentencing court did not commit an error that was
clear or obvious in counting Bauzó's two Article 5.15 convictions
as violent felonies.
Bauzó was also convicted of felony aggravated assault
under Article 95.

"Any person who used force or violence upon the

person of another with the intent to injure him" has committed the
misdemeanor version of this crime.

P.R. Laws Ann. tit. 33, § 4031

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(2001).13

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The felony version--Bauzó's crime of conviction--can be

committed in one of seven different ways, and so the parties agree
that this statute is divisible, too.

Id. § 4032(2).

Bauzó argues

that not all versions of the crime include an element of physical
force capable of causing pain or injury, so the sentencing court
clearly erred in counting his conviction as an ACCA predicate.
disagree.

We

The felony enhancements include the infliction of

"serious bodily injury . . . on the person assaulted" or the use
of "deadly weapons under circumstances not amounting to an intent
to kill or maim." Id. § 4032(2)(b), (c). Thus the text of sections
4031

and

4032

"strongly

suggest

the

statute's

physical-force

element involves the kind of violent force" required by ACCA's
force clause--force "capable of causing physical pain or injury to
another person." Serrano-Mercado, 784 F.3d at 845 (quoting Johnson
I, 559 U.S. at 140); see United States v. Nieves-Borrero, 856 F.3d
5,

8–9

(1st

Cir.

2017)

(finding

no

plain

error

in

counting

aggravated battery under Article 122 as a crime of violence because
it "applies only where the defendant has injured another in a
manner

that

'requires

medical

attention

[or]

specialized

professional outpatient treatment.'" (quoting P.R. Laws Ann. tit.
33, § 4750)); see also United States v. Taylor, 848 F.3d 476, 494

13

Bauzó was convicted of aggravated assault in January 2005,
before the statute was repealed and replaced in May 2005 as part
of Puerto Rico's Penal Code modernization. See Penal Code of the
Commonwealth of Puerto Rico of 2004, No. 149, S.B. 2302, Art. 314.

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(1st Cir.) (18 U.S.C. § 111(b) assault with a dangerous weapon and
assault causing bodily injury are crimes of violence), cert.
denied, No. 16-9137, 2017 WL 2119452 (June 12, 2017); United States
v. Whindleton, 797 F.3d 105, 116 (1st Cir. 2015) (Massachusetts
assault with a dangerous weapon is an ACCA predicate). Bauzó gives
us no reason to believe otherwise.

That means it was not a clear

or obvious error to count the Article 95 conviction as a violent
felony, either.
b) The Shepard Error
That

brings

us

to

Bauzó's

next

alleged

error--the

sentencing court's failure to request the Shepard documents in
order to determine whether he was convicted of a crime-of-violence
modality of each of his predicates.
this claim is a nonstarter.

As the government points out,

Even if we assume that it was a clear

or obvious error for the sentencing court to fail to request the
Shepard documents of its own accord, Bauzó still cannot prevail
here

because

he

has

substantial rights.

not

shown

that

any

error

impacted

his

See Delgado-Sánchez 849 F.3d at 11 (taking a

similar approach in similar circumstances); Serrano-Mercado, 784
F.3d at 848 n.6; United States v. Turbides-Leonardo, 468 F.3d 34,
39 (1st Cir. 2006) (same).

To make such a showing he must

demonstrate "a reasonable probability that he would be better off
from a sentencing standpoint had the district court not committed
the claimed . . . error."

Serrano-Mercado, 784 F.3d at 847

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(quoting Turbides-Leonardo, 468 F.3d at 40).

Entry ID: 6111362

Where the error

alleged is the failure to consult the Shepard documents and apply
the modified categorical approach, he must show that if the
sentencing court had actually examined the Shepard documents, it
would find that his previous convictions were not for violent
felonies.

Delgado-Sánchez 849 F.3d at 11.

But Bauzó does not

show or argue that, if consulted, the Shepard documents would
reveal that he was convicted of non-ACCA-qualifying versions of
Article 5.15 and Article 95.14

That means Bauzó cannot satisfy the

third prong of plain-error review.

Turbides-Leonardo, 468 F.3d at

40.
To sum up, it was not a clear or obvious error for the
sentencing court to count three of Bauzó's prior convictions as
career-offender qualifiers.

And because he does not argue that

the Shepard documents, if consulted, would show he was convicted
of a non-qualifying version of these predicates, he has not shown
that this error impacted his substantial rights.

14

Not only did Bauzó fail to argue that the Shepard documents,
if consulted, would show that he was convicted of a non-qualifying
version of any of his past crimes, but he made three separate
concessions that one modality of each of these crimes is, in fact,
a violent felony. Our analysis here does not adopt or rely on
these concessions. United States v. Thompson, 851 F.3d 129, 131
(1st Cir. 2017) (concessions as to legal conclusions in criminal
cases not binding on appellate court). But under our plain-error
standard of review, these concessions certainly do not advance his
arguments.

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c) The Johnson II Error
That leaves one final issue: Bauzó's claim under Johnson
II.

Remember, Bauzó argues that his prior convictions do not

qualify under ACCA's force clause, so the sentencing court must
have counted them under the residual clause, but the residual
clause is now invalid, and so Bauzó is entitled to resentencing.15
In light of our finding above--that it was not a clear or obvious
error for the sentencing court to count at least three of Bauzó's
priors as predicates under the force clause--this argument is dead
on arrival. In any case, on plain-error review the defendant bears
the burden of showing that this error occurred.
v. Reed, 830 F.3d 1, 7 (1st Cir. 2016).

See United States

As Bauzó himself frames

the argument, the court's career-criminal finding was "implicitly
premised" on the residual clause--in other words, there's no
express indication in the record that this is what the court did.
Nor does he argue that he admitted to his career-offender status
because he believed that his prior convictions counted as ACCA
predicates under the residual clause, or point to any case under
which his prior convictions were found to be predicates under the

15

We note here that after this case was briefed and argued,
the Supreme Court determined that the Sentencing Guidelines'
identically worded residual clause does not suffer from the same
constitutional defect. Beckles v. United States, 137 S. Ct. 886,
895 (2017). To the extent that Bauzó intended to challenge his
Guidelines range on this basis, Beckles means the argument goes
nowhere.

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residual

clause.

Under

Page: 32

these

Date Filed: 08/08/2017

circumstances,

Bauzó

Entry ID: 6111362

has

not

demonstrated that the court committed a Johnson II error, let alone
a clear or obvious one, or that any error affected his substantial
rights.
Conclusion
The district court did not abuse its discretion in admitting
the letter, the judicial-notice jury instruction was not plain or
obvious error, and even if Bauzó's sentencing arguments are not
waived, he has not shown any clear or obvious error that impacted
his substantial rights.

We affirm Bauzó's conviction and his

sentence.

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