US v. Rodriguez-Adorno

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and David J. Barron, Appellate Judge. Published. [16-1114]

Case: 16-1114

Document: 00117135704

Page: 1

Date Filed: 03/29/2017

Entry ID: 6080032

United States Court of Appeals
For the First Circuit
No. 16-1114
UNITED STATES OF AMERICA,
Appellee,
v.
RUBÉN RODRÍGUEZ-ADORNO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.

Virginia G. Villa on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.

March 29, 2017

Case: 16-1114

Document: 00117135704

SELYA,

Circuit

Page: 2

Date Filed: 03/29/2017

Judge.

Entry ID: 6080032

Defendant-appellant

Rubén

Rodríguez-Adorno, represented by newly-appointed counsel, attempts
to reinvent his case on appeal.

His appellate briefing is long on

rhetoric and short on facts, and none of the issues that he
advances was raised below.

Discerning no plain error, we affirm

the challenged conviction and sentence.
I.

BACKGROUND
We briefly rehearse the background and travel of the

case, drawing the facts from the change-of-plea colloquy, the
uncontested portions of the presentence investigation report (PSI
Report), and the sentencing transcript.

See United States v.

Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010); United States v.
Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
For

about

eight

years,

beginning

around

2002,

the

appellant participated in a drug-trafficking conspiracy run out of
a public housing project in Carolina, Puerto Rico.

The drug ring

dealt in a cornucopia of controlled substances, including crack
cocaine,

powder

cocaine,

prescription medications.

heroin,

marijuana,

and

assorted

The appellant functioned mostly as a

retail seller, peddling drugs throughout the project and its
environs.

At other times, he served as a lookout, standing watch

while his confederates completed sales.
In May of 2010, a federal grand jury returned a sixcount indictment charging 70 persons (including the appellant)

- 2 -

Case: 16-1114

Document: 00117135704

Page: 3

with a laundry list of offenses.

Date Filed: 03/29/2017

Entry ID: 6080032

As relevant here, count one

charged the appellant and others with conspiring to possess with
intent to distribute a panoply of controlled substances within a
protected location.
counts

charged

the

See 21 U.S.C. §§ 841(a)(1), 846, 860.
appellant

with

aiding

and

Other

abetting

the

distribution of heroin, cocaine, and marijuana within 1,000 feet
of a public housing project and with conspiring to possess a
firearm and ammunition during and in relation to the commission of
drug-trafficking crimes.
The appellant was not arrested until June of 2014.
Roughly four months later, he entered into a written plea agreement
(the Agreement), agreeing to plead guilty to count one.

As part

of the bargain, the government agreed to dismiss the other charges
against him.
In

the

Agreement,

the

parties

stipulated

that

the

appellant possessed at least 500 grams, but less than 2,000 grams,
of cocaine, notwithstanding that the drug ring was alleged to have
distributed "multiple kilograms" of several different kinds of
drugs.

As a result, the appellant faced a statutory maximum

sentence of eighty years in prison. See 21 U.S.C. §§ 841(b)(1)(B),
860(a).
The Agreement included a number of provisions bearing
upon the appellant's prospective sentence (acknowledging, though,
that the sentencing court was neither bound nor constrained by any

- 3 -

Case: 16-1114

of

Document: 00117135704

these

provisions).

Page: 4

Of

Date Filed: 03/29/2017

particular

pertinence

Entry ID: 6080032

for

present

purposes, the parties suggested a total offense level of 25, but
they did not stipulate to any criminal history category (CHC).
Instead, they agreed that if the appellant's CHC proved to be I or
II, he could argue for a sentence as low as sixty months and the
government could argue for a sentence as high as seventy months.
If, however, the appellant's CHC equaled or exceeded III, both
parties would recommend a sentence at the low end of whatever
guideline sentencing range (GSR) resulted.

Regardless of what his

CHC turned out to be, the appellant promised not to ask for a
sentence of less than sixty months.
At

the

change-of-plea

offering to read the charges.

hearing,

the

court

began

by

The appellant declined the offer,

indicating that he knew the nature of the charges against him.
The court nonetheless proceeded to describe the relevant charges
in detail and also described the manner and means by which the
appellant and his coconspirators had allegedly carried out their
illicit activities.

The appellant acknowledged that he had acted

in the manner that the court portrayed and confirmed that he wished
to plead guilty to the conspiracy count.
The court reminded the appellant that it was not bound
by the Agreement but, rather, was obliged to make its own guideline
calculations and could impose "any sentence provided by the law."
The appellant confirmed that he understood the court's position.

- 4 -

Case: 16-1114

Document: 00117135704

Page: 5

Date Filed: 03/29/2017

Entry ID: 6080032

In due course, the court accepted the appellant's guilty plea and
ordered the preparation of the PSI Report.
When the final version of the PSI Report emerged, it
identified four clusters of convictions aggregating to more than
ten individual convictions, two of which the probation officer
thought sufficient to serve as predicates for a career offender
enhancement under the sentencing guidelines.

With this in mind,

the report recommended that the court set the appellant's total
offense level at 31 and place him in CHC VI. These recommendations
yielded a GSR of 188-235 months.
At the disposition hearing, the government urged the
court to impose a 100-month term of immurement.1

By contrast, the

appellant sought a sharply variant sentence and urged the court to
impose a seventy-month term of immurement.

The court, after

adopting the guideline calculations adumbrated in the PSI Report,
sentenced the appellant to a 235-month incarcerative term — a
sentence that was within, but at the top of, the GSR. In fashioning
this sentence, the court considered, inter alia, the appellant's
personal characteristics, health, criminal history, and the nature

1

Because the Agreement did not specifically mention the
career offender enhancement, the government chose not to take that
enhancement
into
account
in
arriving
at
its
sentencing
recommendation. Consequently, it recommended a sentence at the
low end of a hypothetical GSR, that is, a GSR calculated without
regard to the appellant's career offender status.
- 5 -

Case: 16-1114

Document: 00117135704

Page: 6

Date Filed: 03/29/2017

of his participation in the offense of conviction.

Entry ID: 6080032

This timely

appeal followed.
II.

ANALYSIS
The appellant challenges both his conviction and his

sentence.

We discuss only those claims that show some slight

promise and summarily reject the remainder of his asseverational
array.
A.

Conviction.

The appellant's principal plaint with respect to his
conviction is that his guilty plea was not knowing and voluntary.
We start our examination of this plaint with first principles:
before accepting a defendant's guilty plea, a court must "inform
the defendant of, and determine that [he] understands, . . . the
nature of each charge."
States

v.

Jones,

778

Fed. R. Crim. P. 11(b)(1)(G); see United
F.3d

375,

382

(1st

Cir.

2015).

This

obligation extends to "the charges against [the defendant] and the
spectrum of possible penalties to which an admission of guilt will
expose him."

United States v. Jimenez, 512 F.3d 1, 3 (1st Cir.

2007).
Seizing upon this requirement, the appellant insists
that the district court twice erred at the change-of-plea hearing:
when it failed to read count one of the indictment verbatim and
when it failed to inform him properly about the consequences of
his plea.

Because he did not raise either of these claims below,

- 6 -

Case: 16-1114

Document: 00117135704

Page: 7

our review is for plain error.
U.S. 55, 59 (2002).

Date Filed: 03/29/2017

Entry ID: 6080032

See United States v. Vonn, 535

Plain error review imposes a heavy burden.

Under that daunting standard, the appellant must show "(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings."

United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001).
The appellant's first claim does not withstand even
cursory inquiry: the sentencing court simply was not obliged to
read the indictment verbatim.

As we have noted, "Rule 11 does not

require a district court either to spout a fixed catechism or to
use a set of magic words."

Jones, 778 F.3d at 382.

By the same

token, it does not require that the court explore in minute detail
every nook and cranny of the charging document.

See id.; United

States v. Cruz-Rivera, 357 F.3d 10, 13 (1st Cir. 2004).

Reading

an indictment may be sufficient to inform a defendant of the
charges against him, see Jones, 778 F.3d at 382, but it is by no
means the only avenue through which a sentencing court can achieve
that end, see United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st
Cir. 1995).
The appellant's more weighty claim is that the court's
failure

to

read

count

one

verbatim

rendered

him

unable

to

"understand the scope of the offense to which he . . . plead[ed]

- 7 -

Case: 16-1114

Document: 00117135704

guilty."

Page: 8

Date Filed: 03/29/2017

Entry ID: 6080032

At bottom, though, this claim rests on revisionist

history: at the change-of-plea hearing, the appellant affirmed
several times that he understood the charges and intended to plead
guilty.

A defendant's admission that the allegations against him

are true is ordinarily sufficient proof that he understands the
charges.

See United States v. Dunfee, 821 F.3d 120, 128 (1st Cir.

2016) (noting that declarations in open court "carry a strong
presumption of verity" (quoting United States v. Santiago Miranda,
654 F.3d 130, 138 (1st Cir. 2011))); United States v. Smith, 511
F.3d 77, 85 (1st Cir. 2007) (similar).
This case falls within that general rule, not within the
long-odds exception to it.

The relevant inquiry on appeal focuses

on the totality of the circumstances, including "the attributes of
the particular defendant, the nature of the specific offense, and
the complexity of the attendant circumstances."

Jones, 778 F.3d

at 382 (quoting United States v. Ramos-Mejía, 721 F.3d 12, 15 (1st
Cir. 2013)).

In this instance, the court informed the appellant

that he was charged with conspiring to "knowingly and intentionally
possess with intent to distribute controlled substances."

It then

described the offense conduct in some detail (including particular
methods and locations) and identified the appellant's role within
the conspiracy. The appellant confirmed his understanding of those
charges.

No more was exigible to render the appellant's plea

knowing and voluntary.

- 8 -

Case: 16-1114

Document: 00117135704

Page: 9

Date Filed: 03/29/2017

Entry ID: 6080032

The appellant next contends that because neither the
Agreement nor the district court mentioned in haec verba that he
might be subject to the career offender enhancement,2 he did not
appreciate

the

consequences

contention

mixes

plums

with

of

his

guilty

pomegranates:

plea.
the

But

fact

that

this
the

appellant was not explicitly informed of the possibility of a
career

offender

enhancement

does

not

mean

that

he

was

appropriately informed of the consequences of his plea.
Jimenez, 512 F.3d at 3.
contemplated

that

the

not
See

After all, the Agreement specifically
appellant's

CHC

might

be

elevated

and

established a sentencing framework that took account of that
possibility.

The

change-of-plea

colloquy

alluded

to

this

framework and, echoing the Agreement, warned the appellant that
the court would make its own guideline calculations and could
impose a sentence up to the statutory maximum for the offense of
conviction.

These warnings were adequate.

At this relatively

early stage in the process (that is, at the change-of-plea stage),
the court was not obligated to predict the future and "inform the
defendant . . . of the exact manner in which [his] future guideline
calculations may evolve."

Jones, 778 F.3d at 383 (citing Fed. R.

2

The sentencing guidelines prescribe a career offender
enhancement when a defendant has "at least two prior felony
convictions of either a crime of violence or a controlled substance
offense."
United States v. Montoya, 844 F.3d 63, 72 (1st Cir.
2016) (quoting USSG §4B1.1(a)). The enhancement serves both to
increase a defendant's offense level and to elevate his CHC. See
USSG §4B1.1(b).
- 9 -

Case: 16-1114

Document: 00117135704

Page: 10

Date Filed: 03/29/2017

Entry ID: 6080032

Crim. P. 11 advisory committee's note (1989 amendment) (discussing
same)).

"Any other rule would put the cart before the horse,

requiring the court to get the functional equivalent of a full
[PSI Report] before it could accept a guilty plea."

Id.

The appellant's final conviction-related claim has a
patina of plausibility.

He points out that the court recited an

incorrect statutory maximum at the change-of-plea hearing.

See

Fed. R. Crim. P. 11(b)(1)(H) (requiring court to notify defendant
of "any maximum possible penalty" that he faces). The error itself
is patent: at the change-of-plea hearing, the court told the
appellant that he faced a maximum possible sentence of forty years
when, in fact, he faced a maximum possible sentence of eighty
years.

See 21 U.S.C. §§ 841(b)(1)(B), 860(a).
Although this error satisfies the first two elements of

the plain error test, it nonetheless falters at the third step:
the appellant has not shown that the error affected his substantial
rights.

To make such a showing in this context, a defendant must

identify "a reasonable probability that but for some error, he
would not have pleaded guilty."

United States v. Ocasio-Cancel,

727 F.3d 85, 89 (1st Cir. 2013) (citing, inter alia, United States
v. Davila, 133 S. Ct. 2139, 2147 (2013)).

The appellant makes no

such argument, much less the requisite showing.

At any rate, the

Agreement accurately stated the eighty-year statutory maximum for
the offense of conviction; and there is nothing in the record to

- 10 -

Case: 16-1114

Document: 00117135704

suggest

that

the

Page: 11

appellant

—

who

Date Filed: 03/29/2017

was

negotiating

Entry ID: 6080032

with

the

government for a sentence well below the statutory maximum — was
influenced unfairly by the district court's slip of the tongue.3
See United States v. Romero-Galindez, 782 F.3d 63, 67-68 (1st Cir.
2015) (applying similar logic to hold that misstatement of term of
supervised release did not affect validity of defendant's plea).
To say more about the appellant's challenges to his
conviction would be to paint the lily.

After examining all of the

appellant's arguments in this regard, it is readily apparent that
plain error is plainly absent.
B.

Sentence.

The appellant's sentence-related arguments are no more
substantial.

His briefing is muddled, and it is often unclear

whether he attempts to tie his claims to alleged procedural bevues
underlying his sentence or to its purported lack of substantive
reasonableness.

In an abundance of caution, we address both

aspects.
In general, sentencing claims are addressed under a twostep pavane.

See United States v. Martin, 520 F.3d 87, 92 (1st

Cir. 2008).

First, we address those claims that affect the

procedural integrity of the sentence.

3

See id.

Second, we address

We note that the PSI Report stated the correct statutory
maximum, and the appellant expressed no surprise upon receipt.
Nor did he seek to withdraw his guilty plea.
- 11 -

Case: 16-1114

Document: 00117135704

Page: 12

Date Filed: 03/29/2017

Entry ID: 6080032

any residual question as to the substantive reasonableness of the
sentence.

See id.
In this case, the appellant accuses the district court

of

neglecting

to

give

proper

consideration

enumerated in 18 U.S.C. § 3553(a).

to

the

factors

Specifically, he contends that

the court did not mull the nature and circumstances of the offense
of conviction, his history and characteristics, and the need to
avoid unwarranted sentencing disparity.

These contentions lack

any semblance of force.
As a threshold matter, the standard of review looms as
a formidable obstacle. The appellant did not raise any such claims
below and, thus, appellate review is for plain error. See Jimenez,
512 F.3d at 3; Duarte, 246 F.3d at 60.
Here, moreover, the court stated at the disposition
hearing

that

it

had

. . . 3553 factors."

"taken

into

consideration

all

of

the

This statement itself is entitled to some

weight, see Dávila-González, 595 F.3d at 49, and the appellant
points

to

nothing

in

the

record

that

serves

to

suggest

the

contrary.
In any event, a sentencing court has broad discretion to
weigh and balance the section 3553(a) factors.

See United States

v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013).

The court

may treat those factors as a whole: "it is not required to address
those factors, one by one, in some sort of rote incantation when

- 12 -

Case: 16-1114

Document: 00117135704

Page: 13

Date Filed: 03/29/2017

explicating its sentencing decision."

Entry ID: 6080032

United States v. Dixon, 449

F.3d 194, 205 (1st Cir. 2006).
Against this backdrop, we turn to the appellant's more
particularized

plaints.

To

begin,

his

suggestion

that

the

sentencing court misperceived the nature and circumstances of the
crime is woven out of whole cloth.

While he claims that the court

did not understand the "exact nature" of his participation in the
conspiracy and, therefore, could not tailor a sentence to his role
in the offense, the record belies this claim.

At sentencing, the

court recounted many pertinent details of the offense, including
the appellant's service as a seller, and his admission that he had
handled between 500 and 2,000 grams of crack cocaine in the course
of the enterprise.

Seen in this light, the suggestion that the

court did not understand the nature and circumstances of the
offense appears groundless.
Relatedly,

the

appellant

claims

that

the

court

misconstrued statements in the PSI Report regarding his history
and characteristics, causing the court to give his difficult family
circumstances and struggles with addiction short shrift.

This

claim, too, strains credulity. The record reflects that the court,
before pronouncing sentence, paid specific heed to the appellant's
family circumstances, history of substance abuse, and health, and
factored those considerations into its sentencing calculus.

The

appellant's remonstrance, then, boils down to nothing more than a

- 13 -

Case: 16-1114

Document: 00117135704

Page: 14

Date Filed: 03/29/2017

Entry ID: 6080032

contention that the court did not give potentially mitigating
factors, such as the appellant's history and characteristics, the
weight that the appellant would have liked.

We have stated, with

a regularity bordering on the monotonous, that such qualitative
judgments fall comfortably within a sentencing court's purview.
See, e.g., United States v. Bermúdez-Meléndez, 827 F.3d 160, 165
(1st Cir. 2016); Flores-Machicote, 706 F.3d at 23.

Accordingly,

the appellant's quarrel with this aspect of the sentencing court's
rationale falls short of a showing of error (plain or otherwise).
The appellant's claim of sentencing disparity is equally
unpersuasive.

Refined to bare essence, his argument is that the

court failed to consider that many of his codefendants received
lesser sentences.

This oversight, he says, transgressed the

congressional directive to "avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct." 18 U.S.C. § 3553(a)(6). This claim is doubly
flawed.
For one thing, when Congress enacted section 3553(a)(6),
it was concerned "mainly with minimization of disparities among
defendants

nationally

rather

than

with

codefendants engaged in a common conspiracy."4

4

disparities

among

United States v.

To be sure, the appellant makes a passing suggestion in his
reply brief that his sentence is greater "than the majority of
defendants convicted of drug offenses who are Career Offenders."
This suggestion, though, is both conclusory and undeveloped. At
- 14 -

Case: 16-1114

Document: 00117135704

Page: 15

Date Filed: 03/29/2017

Entry ID: 6080032

Floyd, 740 F.3d 22, 39 (1st Cir. 2014) (quoting United States v.
Vargas, 560 F.3d 45, 52 (1st Cir. 2009)).
For another thing, the appellant has not shown that any
of

his

proposed

comparators

—

an

undefined

coconspirators — were similarly situated to him.

subset

of

his

Although his

brief contains a barebones list of the various coconspirators and
their sentences, the appellant comments upon only one particular
coconspirator

—

a

coconspirator

who

allegedly

played

a

more

significant role in the conspiracy but received a lesser sentence.
However, he presents no information about this coconspirator's
specific criminal involvement, his criminal history, his career
offender status, or his cooperation (if any) with the government.
A credible claim of sentencing disparity requires that
the proponent furnish the court with enough relevant information
to permit a determination that he and his proposed comparators are
similarly situated.

See United States v. Reyes-Santiago, 804 F.3d

453, 467 (1st Cir. 2015).

That information must enable the court

to "compare apples to apples."

Id.

Here, however, the appellant

utterly failed to lay any foundation on which to build a claim of
sentencing disparity.

See United States v. Demers, 842 F.3d 8, 15

(1st Cir. 2016).

any rate, the appellant does not make any effort to show that the
offenders to whom this suggestion refers were similarly situated.
- 15 -

Case: 16-1114

Document: 00117135704

Page: 16

Date Filed: 03/29/2017

Entry ID: 6080032

Finally, we address the appellant's somewhat amorphous
claim that his sentence is substantively unreasonable.5

The

"linchpin" of substantive reasonableness review is an assessment
of whether the sentencing court supplied a "plausible sentencing
rationale" and reached a "defensible result."

Martin, 520 F.3d at

96. In the course of such a review, an appellate court is generally
not at liberty to second-guess a sentencing court's reasoned
judgments.

See United States v. Clogston, 662 F.3d 588, 593 (1st

Cir. 2011).

After all, there is typically not a single reasonable

sentence but, rather, a broad range of reasonable sentences that
can apply in any given case.

See Martin, 520 F.3d at 92.

Even though the appellant did not raise this claim below,
we assume — favorably to the appellant — that our review is for
abuse of discretion.

See United States v. Pérez, 819 F.3d 541,

547 (1st Cir.), cert. denied, 137 S. Ct. 111 (2016); United States
v. Ruiz-Huertas, 792 F.3d 223, 228 & n.4 (1st Cir.), cert. denied,
136 S. Ct. 258 (2015).

We discern none here.

Before imposing sentence, the district court recounted
the

appellant's

extensive

criminal

history,

which

included

a

number of violent crimes, specific threats to individuals, and
weapons offenses.6

The court observed that, even though the

5

To the extent (if at all) that this claim depends upon the
appellant's plaint about sentencing disparity, it fails for the
reasons previously stated.
6
The appellant takes umbrage at the district court's
description of several of his prior offenses. Although the court's
- 16 -

Case: 16-1114

Document: 00117135704

Page: 17

Date Filed: 03/29/2017

Entry ID: 6080032

defendant had been convicted of and served time for several
offenses,

he

continued

to

engage

in

criminal

conduct.

Consequently, the court levied a sentence at the high end of the
GSR to protect the public, deter the appellant, and provide condign
punishment.

This was doubtless a plausible sentencing rationale.

So, too, the court reached a defensible result.
guidelines

sentences

are

entitled

to

a

Within-

presumption

of

reasonableness, see Rita v. United States, 551 U.S. 338, 347
(2007), and a defendant who seeks to challenge such a sentence
bears a heavy burden, see United States v. Pelletier, 469 F.3d
194, 204 (1st Cir. 2006).

The appellant has not carried that

burden: the nature of his crime, combined with his extensive
criminal history, made it reasonable for the court to look to the
upper reaches of the GSR.

The sentence imposed, though stiff, is

within the wide universe of substantively reasonable sentences.
III.

CONCLUSION
We need go no further. For the reasons elucidated above,

the appellant's conviction and sentence are

Affirmed.

language could have been more precise, any misconception about the
peripheral details about which the appellant complains was not
central to its analysis.
Hence, any error in this regard was
harmless.
- 17 -