APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Carmen Consuelo Cerezo, U.S. District Judge.
Heather Golias, with whom Law Office of Heather Golias was on brief, for appellant.
Michael C. Bagge, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Velé z, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.
Before Howard, Circuit Judge, Souter[*] Associate Justice, and Stahl, Circuit Judge.
HOWARD, Circuit Judge
Efrain Santiago-Burgos appeals the ninety-seven month prison sentence imposed by the district court after he pled guilty to a drug conspiracy charge. Santiago argues that the district court made a prejudicial Sentencing Guideline calculation error and improperly imposed his sentence consecutive to one he received as a result of a conviction tangentially related to the relevant drug conspiracy. The government concedes the Guideline miscalculation point but disputes the consecutive sentence error. It also argues that any error is nevertheless for naught because Santiago's plea agreement included a waiver of appeal. Santiago disputes the applicability of the waiver. We hold as follows: the waiver does not bar Santiago's appeal; the consecutive sentence was not improper; the Guideline error requires remand for resentencing.
In August 2008, Santiago and dozens of other people were indicted on multiple drug conspiracy counts. The indictment alleged, inter alia, that Santiago served as a " runner," whose duties included providing drugs to sellers and collecting drug proceeds from them. Previously, in July 2006 -- a time during which the drug conspiracy was alleged to be active -- Santiago was sentenced to a short prison term and three years of supervised release for assaulting a Drug Enforcement Agency informant. The supervised release eventually was revoked as a result of the current charges.
In April 2011, Santiago pled guilty to one count of the present indictment, which charged him with conspiracy to possess with intent to distribute more than five kilograms of cocaine, fifty grams of cocaine base, one kilogram of heroin, 100 kilograms of marijuana, and/or Oxycodone and Xanax, all within 1000 feet of a school or public housing complex. The government and Santiago executed a plea agreement which stipulated that Santiago would be accountable for at least two but less than 3.5 kilograms of cocaine. The parties further agreed that Santiago's Sentencing Guideline calculation would begin with a Base Offense Level (" BOL" ) of twenty-eight, to be increased by two levels because of the protected location involved and by two more levels for his role in the offense. Finally, if Santiago accepted responsibility for his crimes, he would receive a three-level deduction. These stipulations yielded an agreed-upon Total Offense Level (" TOL" ) of 29, a result which is not part of this appeal.
The plea agreement contained no stipulation with respect to Santiago's Criminal History Category (" CHC" ), but the parties agreed to certain limits on the parties' permissible arguments about the appropriate sentence. They agreed that, if Santiago's CHC was determined to be I, he could ask for a sentence as low as eighty-seven months or the low end of the applicable Guideline range, whichever was higher. The government, meanwhile
was permitted to recommend a sentence of ninety-seven months if Santiago's CHC was I or II. A CHC of III or higher would result in a recommendation at the low end of the applicable Guideline range. Neither side was permitted ...