US v. Diaz-Rodriguez

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-1307]

Case: 15-1307

Document: 00117130660

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Date Filed: 03/17/2017

Entry ID: 6077056

United States Court of Appeals
For the First Circuit
No. 15-1307
UNITED STATES OF AMERICA,
Appellee,
v.
FERNANDO DÍAZ-RODRÍGUEZ,
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, Kayatta,
Circuit Judges.

Joshua L. Solomon and Pollack, Solomon, Duffy LLP on brief
for appellant.
Tiffany V. Monrose, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.

March 17, 2017

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THOMPSON,

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Circuit

Date Filed: 03/17/2017

Judge.

Appellant

Entry ID: 6077056

Fernando

Díaz-

Rodríguez ("Díaz") pled guilty to aiding and abetting others in
the possession of a firearm that was discharged during a robbery
in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2.

On appeal,

Díaz argues that his sentence should be vacated for lack of a
factual basis to support his guilty plea.

After careful review,

we affirm the district court's sentence.
Background1
The facts of this case are largely undisputed.

On

September 1, 2010, two employees of the Ranger American Armored
Services were driving an armored truck on their normal delivery
route.

When they arrived at the Morovena Credit Union in Morovis,

Puerto Rico to deliver $80,000 to the bank, they were attacked by
several armed robbers who pulled up behind them in a dark-grey
Toyota.

Díaz was one of the robbers.

During the course of the

heist, one robber struck the employee who had exited the armored
truck with the cash in the back of the head, while another robber
pointed a .357 Magnum at that employee.

The employee ultimately

threw the bag of money to the ground and one robber picked it up.
Díaz then grabbed the employee in a bear-hug from behind and the
employee noticed that he, too, was carrying a gun.

1

The robber

Because this sentencing appeal follows a guilty plea, we
gather the pertinent facts from the change-of-plea colloquy and
plea agreement. United States v. Ríos-Hernández, 645 F.3d 456,
458 (1st Cir. 2011).

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wielding the .357 Magnum then fired shots in the direction of both
the employee and Díaz.

Díaz was struck in the left arm and left

leg, the employee was shot in the abdomen, and they both collapsed
to the ground.

Another rifle-toting robber fired at the second

Ranger American employee who had remained inside the armored truck,
but he managed to drive away and escape the scene.

Then the

robbers attempted to shoot the remaining wounded employee in the
head.

Fortunately, the robbers were out of ammunition and the

employee was able to escape.

The robbers, including Díaz, then

re-entered the dark-grey Toyota and drove off, but were later
apprehended by authorities.
On March 3, 2011 the government filed a superseding twocount indictment charging Díaz with aiding and abetting others in
the

robbery

of

a

bank

armored

truck

in

violation

of

18

U.S.C. §§ 1951 and 2 (Count One) and with carrying and using a
firearm that was discharged during and in relation to the robbery
in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Two). Count
Two did not actually use the words "aiding and abetting" as Count
One did; however, it did cite to the aiding and abetting statute
at 18 U.S.C. § 2 (which specifically provides that "[w]hoever
commits an offense against the United States or aids, abets,
counsels,

commands,

induces

or

procures

punishable as a principal").

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its

commission,

is

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On October 3, 2014, the parties entered into a plea
agreement

(the

Agreement,

"Agreement").

Díaz

agreed

to

By

plead

the
guilty

precise
to

terms

Count

of

One,

the

which

"charge[d] that [Díaz], aiding and abetting others, did obstruct,
delay, and affect commerce, and the movement of articles and
commodities in such commerce, by robbery in violation of 18 U.S.C.
§§ 1951 and 2."

Díaz also agreed to plead guilty to Count Two,

which "charge[d] that [Díaz], aiding and abetting others, did
knowingly carry and use a firearm, which firearm was discharged,
during and in relation to [the robbery charged in Count One]."
The parties also agreed to the statutory penalties applicable to
both counts.

In relevant part, the parties agreed that Count One

had a statutory maximum imprisonment term of no more than twenty
years (or 240 months) pursuant to 18 U.S.C. § 1951.

The parties

also agreed that Count Two had a mandatory minimum term of not
less than ten years (or 120 months) and a potential maximum of
life imprisonment pursuant to 18 U.S.C. § 924(c)(1)(A)(iii).
For the purposes of calculating Díaz's sentence under
the United States Sentencing Guidelines Manual ("Guidelines"), the
parties further agreed to a total offense level of 28 for Count
One, made no determination as to the applicable criminal history
category, and agreed that Count Two was subject to a 120-month (or
ten year) mandatory minimum to run consecutively to Count One.
The

Agreement

also

contained

a

waiver-of-appeal

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clause

which

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provided that Díaz knowingly and voluntarily waived the right to
appeal the judgment and sentence in his case, provided that he was
sentenced in accordance with the terms and conditions set forth in
the sentencing recommendation provisions of the Agreement.
On October 3, 2014, Díaz pled guilty to both counts of
the indictment and on February 18, 2015, finding an applicable
criminal history category of III and a total offense level of 28,
the court sentenced Díaz in accordance with the terms of the plea
agreement to 120 months as to Count One and another 120 months as
to Count Two, to be served consecutively.

Díaz did not challenge

the court's sentencing nor did he attempt to withdraw his guilty
plea.
Díaz now appeals his sentence, arguing that the court
incorrectly sentenced him to 120 months as to Count Two (Díaz does
not challenge the court's sentence as to Count One).

Díaz argues

that although he signed a plea agreement with a waiver-of-appeal
clause and was sentenced in accordance with that agreement, his
sentence on Count Two should be reversed because the court did not
properly calculate the applicable Guidelines range.

Specifically,

Díaz argues that there was an insufficient factual basis for the
court's acceptance of his guilty plea as to Count Two.
Discussion
Before turning to the merits of this appeal, we pause to
note that the Agreement contained a waiver-of-appeal provision

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that foreclosed any appeal so long as Díaz was sentenced in
accordance

with

the

agreement's

terms.

Accordingly,

the

government argues that because Díaz was sentenced in accordance
with the terms of his plea agreement, he has waived his right to
appeal.

Díaz contends that his arguments on appeal are not within

the scope of the waiver-of-appeal clause because the district court
improperly calculated the applicable Guidelines range.
not tarry with the parties' waiver arguments.

We need

Because Díaz's

claims can be easily resolved on the merits, we assume arguendo
that the waiver-of-appeal provision does not bar maintenance of
his appeal.

See United States v. Sánchez-Maldonado, 737 F.3d 826,

827-28 (1st Cir. 2016).
Here, Díaz's primary contention is that the district
court erred in accepting his guilty plea (with regards to Count
Two) because there was no factual basis for the intent element of
the aiding and abetting charge to which he pled guilty.

Because

Díaz did not present the issue of an insufficient factual basis to
the district court, he now "faces the 'heavy burden' of plainerror review and must" demonstrate that a clear error occurred,
which "affected [his] substantial rights [and] seriously impaired
the

fairness,

proceedings."

integrity,

or

public

reputation

of

judicial

United States v. Delgado-López, 837 F.3d 131, 134

(1st Cir. 2016) (alterations in original) (quoting United States

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v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir. 2013)).

Entry ID: 6077056

Díaz can make

no such showing.
Our inquiry is guided by both Rule 11 of the Federal
Rules of Criminal Procedure and the aiding and abetting statute,
18 U.S.C. § 2.

Federal Rule of Criminal Procedure 11(b)(3)

requires that a court determine the factual basis for a guilty
plea prior to entering judgment on that plea.

Under Rule 11, the

necessary showing for the "factual basis" requirement is "fairly
modest" and "the evidence need not conclusively demonstrate guilt
beyond a reasonable doubt."

Ramos-Mejía, 721 F.3d at 16 (citing

United States v. Pimentel, 539 F.3d 26, 29 (1st Cir. 2008)).
Indeed, "the government need only show a rational basis in fact
for the defendant's guilt."

Id. (citing Pimentel, 539 F.3d at 29;

United States v. Delgado-Hernández, 420 F.3d 16, 27 (1st Cir.
2005)).

"[T]he government is [also] not required to support every

element of the charged crime by direct evidence" and a district
court "may infer '[t]he factual predicate for the requisite mens
rea . . . from all the evidence alluded to at the Rule 11 hearing."
Id.
"[A] person is liable under [18 U.S.C.] § 2 for aiding
and abetting a crime if (and only if) he (1) takes an affirmative
act

in

furtherance

facilitating

the

of

that

offense's

offense,

(2)

commission."

States, 134 S. Ct. 1240, 1245 (2014).

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with

the

Rosemond

intent
v.

of

United

In Rosemond, the Supreme

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Court held that in order to meet the intent requirement when
accusing a defendant of aiding or abetting a § 924(c) offense, the
government must show "that the defendant actively participated in
the underlying drug trafficking or violent crime with advance
knowledge that a confederate would use or carry a gun during the
crime's commission."

Id. at 1243.

The Supreme Court defined

"advance knowledge" as "knowledge at a time the accomplice can do
something with it -- most notably, opt to walk away."

Id. at 1249-

50.
Relying on Rosemond, Díaz argues that there was an
insufficient showing that he had advance knowledge that his fellow
robbers would carry or discharge firearms during the robbery and
therefore there was an insufficient factual basis to support the
intent requirement of the aiding and abetting offense.

The

government argues that there was a sufficient factual basis to
satisfy the intent element of the aiding and abetting statute.
During

Díaz's

change-of-plea

colloquy,

the

detailed the charges to which Díaz was pleading guilty.

court
With

regard to the relevant aiding and abetting count (Count Two) the
following exchange took place:
THE COURT:
And Count Two charges that you
knowingly carried and used a firearm and that
the firearm was discharged during and in
relation to a crime of violence for which you
may be prosecuted in the Court of the United
States, which was the interference with
commerce and robbery that is set forth in

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Count One, and aiding and abetting others to
do that.
As to Count Two, Mr. Díaz, is that
what did you [sic]?
[DÍAZ]:

Yes, sir.

THE COURT:
guilty to?
[DÍAZ]:

Is that what you are pleading

Yes, sir.

THE COURT: The maximum and minimum punishment
that the law provides for the offenses to
which you want to plead guilty are as
follows . . . .
So, Mr. Díaz, for Count Two, the
term of imprisonment, as I told you is not
less than 10 years, 120 months, and can go up
to life imprisonment. . . .
Do you understand all those serious
possible consequences of your plea of guilty?
[DÍAZ]:

Yes, sir.

The government then described the facts and evidence it
would have presented at trial to prove its case: namely that Díaz
was an accomplice involved in the armored truck robbery; that
several robbers, including Díaz himself possessed weapons during
the course of the robbery; that at least two weapons, including a
.357 Magnum and a rifle, were discharged and in fact injured a
victim during the robbery; and that Díaz partook in and facilitated
the robbery until the very end when the robbers fled the scene.
The district court then asked Díaz whether he "agree[d]
with the Government's version [of the facts]."

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He responded that

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he agreed and admitted to committing the crime as described by the
prosecutor.
In light of his factual concessions, we find that there
was a sufficient basis to support the requisite intent for aiding
and abetting possession of a firearm that was discharged during
the

course

of

the

robbery.

"[A]s

long

as

the

government's

proffered facts, conceded by the defendant to be true, touch all
the bases, there is a sufficient factual basis for the tendered
plea."

United States v. Jiminez, 498 F.3d 82, 87 (1st Cir. 2007).

And "[t]he facts relevant to [the Rule 11 'factual basis'] inquiry
may be gleaned either from the defendant's admissions or from the
prosecution's version of the evidence (to the extent that it is
acknowledged by the defendant)."

Id. at 86.

Here, Díaz agreed with the statement of facts presented
by the government both at his change-of-plea hearing and within
his signed plea agreement.

He admitted that he was in a vehicle

with confederates -- all of whom possessed weapons, including a
.357 Magnum and a rifle -- and that they robbed an armored truck.
He admitted that he himself possessed a weapon that was brandished
during the robbery and that his armed confederates discharged their
weapons from the moment they exited their vehicle until they ran
out of ammunition or drove away from the crime scene.

Díaz also

conceded that he held one of the victims of the robbery in a bearhug while a fellow robber "opened fire" on the victim and Díaz.

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After the victim was hit, and even after Díaz himself had been
wounded, Díaz conceded that he remained in confederation with his
fellow robbers, one of whom used his rifle to shoot at a second
victim.

After both victims eventually escaped, Díaz entered the

same vehicle he arrived in with his fellow confederates and fled
the crime scene.

These concessions form a rational basis for

accepting Díaz's guilty plea and make Díaz's arguments that he did
not know that his confederates possessed and planned to use their
weapons highly unlikely.

See United States v. Laracuent, 778 F.3d

347, 351 (1st Cir. 2015) (suggesting that where a defendant "agreed
that he himself knowingly and unlawfully possessed" firearms used
in furtherance of a drug-trafficking offense, his arguments that
he lacked advance knowledge that one of his confederates would
carry a gun were "particularly flimsy.").
At the very least, even if Díaz was unaware that his
confederates possessed and intended to discharge their weapons
prior to arriving at the crime scene, either after his armed
confederates began shooting at the victims upon exit from their
vehicle or certainly after a fellow robber used his weapon to shoot
at a victim who Díaz restrained in a bear-hug or, again, after
another robber used his rifle to shoot at a second victim, Díaz
was afforded ample opportunities upon which he possessed the
knowledge necessary to "enable[] him to make the relevant legal
(and indeed, moral) choice."

Rosemond, 134 S. Ct. at 1249-50.

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Indeed, he possessed the relevant "knowledge at a time [he could]
do something with it -- most notably, opt to walk away."
1250.

Id. at

Yet, despite obtaining the requisite knowledge regarding

his confederates' possession and use of weapons in sufficient time
to withdraw from the crime -- in multiple instances, Díaz simply
chose otherwise.
Based on Díaz's own concessions, the district court
properly concluded that the government had proffered sufficient
facts to form a rational basis from which to infer that Díaz
possessed the requisite intent for his guilty plea.

See Ramos-

Mejía, 721 F.3d at 16.
Before concluding, we tie up some loose ends raised by
Díaz himself.

Despite being represented by competent counsel,

Díaz requested and was granted permission to file a supplemental
pro se brief.

In that brief, Díaz argues that: (1) he was not

placed on "sufficient notice" that he was pleading guilty to an
aiding

and

abetting

charge;

(2)

the

indictment

was

"fatally

defective" because it did not include the "aiding and abetting"
statutory language in Count Two; (3) the district court failed to
take into account his age at sentencing; and (4) the district court
erred in failing to grant him a downward departure due to his
physical injuries.

Like those of his counsel, Díaz's pro se

arguments are equally unavailing.

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First,

the

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unambiguous

Date Filed: 03/17/2017

terms

of

the

Entry ID: 6077056

plea

agreement

itself make clear that Díaz agreed to plead guilty to "aiding and
abetting others" who carried and used a discharged weapon during
the course of the robbery (Count Two).

"In the plea-bargain

context, the text of the plea agreement and the content of the
change-of-plea

colloquy

are

critically

important

to

a

determination of knowledge and volition." United States v. Teeter,
257 F.3d 14, 24 (1st Cir. 2001). Here, despite Díaz's contentions,
both the text of the plea agreement and the record of the changeof-plea colloquy demonstrate that he knowingly and voluntarily
pled

guilty

to

aiding

and

abetting

others

in

the

use

of

a

discharged firearm during and in relation to the robbery (Count
Two).
And while the facts as described by the government, and
affirmed by Díaz, contained no mention of his gun being discharged,
there can be no confusion that Díaz clearly pled guilty to aiding
and abetting others whose firearms were discharged, as the district
court clearly indicated such during the change-of-plea colloquy.
Next, Díaz's contention that the indictment was fatally
defective because it did not include the "aiding and abetting"
statutory language also fails.

The indictment did explicitly cite

the aiding and abetting statute, 18 U.S.C. § 2. Absent any "unfair
surprise," that was more than enough.

See United States v.

Sanchez, 917 F.2d 607, 611 (1st Cir. 1990) ("Aiding and abetting

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is 'an alternative charge in every . . . count, whether explicit
or implicit.'" (quoting United States v. McKnight, 799 F.2d 443,
445 (8th Cir. 1986))).

Accordingly, the indictment here was more

than sufficient when it clearly indicated that Díaz was being
charged pursuant to the aiding and abetting statute, 18 U.S.C. §
2.
Díaz also argues that the district court ignored 18
U.S.C. § 3553(a) factors because it failed to consider his age at
sentencing.

To the contrary, the record demonstrates that the

court fully considered Díaz's age, noting that he was "over 54
years old," had a "seventh grade education," and that he was a
"father of three children and a grandfather of four." "That [Díaz]
would prefer an alternative weighing of the circumstances [and
specifically his age] does not undermine the district court's
sentencing decision."

See United States v. Rossignol, 780 F.3d

475, 479 (1st Cir. 2015).
Lastly, Díaz argues that the district court should have
granted

him

a

downward

departure

because

of

his

physical

impairments under § 5H1.4 of the Guidelines, which provides that
"[a]n extraordinary physical impairment may be a reason to depart
downward."

We review the district court's decision not to depart

from the Guidelines for reasonableness.

See United States v.

Anonymous Defendant, 629 F.3d 68, 74 (1st Cir. 2010) ("This review
[for reasonableness] encompasses virtually the entire gamut of

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sentences

imposed

under

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the

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advisory

guidelines,

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including

sentences shaped by discretionary departure decisions.").

And a

"[r]eview for reasonableness is functionally equivalent to [a]
review for abuse of discretion."

Id. (citing United States v.

Carrasco-De-Jesús, 589 F.3d 22, 26 (1st Cir. 2009)).
We have clarified that "departures based on physical
condition are discouraged" and have further noted that a departure
may

be

appropriate

when

a

court

finds

an

"extraordinary

impairment," i.e., where "imprisonment would threaten or shorten
a defendant's life or when the Bureau of Prisons would be unable
to adequately meet the defendant's medical needs."
v. Martin, 363 F.3d 25, 49 (1st Cir. 2004).

United States

In this case, the

district court found no such extraordinary circumstances.
The

court

heard

arguments

from

both

Díaz

and

the

government regarding his physical impairments and even noted its
consideration of Díaz's physical ailments and whether he could
receive adequate treatment in custody, remarking that "[t]he issue
to [the court] is whether [Díaz] can be treated either at a prison
hospital or at a Care Level 2 facility."

Ultimately, the court

determined that Díaz could receive adequate treatment while in
custody, recognizing that "Mr. Díaz requires medical treatment for
the leg wound he received during the robbery" and that "[t]he Court
[would] recommend that he be allowed to benefit from medical care
offered by the Bureau of Prisons."

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After careful review of the

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record, we agree with the district court's decision not to depart.
There is nothing in the record which indicates that Diaz's life
would be threatened or shortened by virtue of being incarcerated
or that the Bureau of Prisons would be unable to adequately
accommodate his medical needs.

The district court's decision was

thus reasonable given the facts of this case.
Conclusion
For the foregoing reasons, we find no error in the
district court's acceptance of Díaz's guilty plea with regards to
the aiding and abetting count (Count Two).
Affirmed.

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