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United States v. JosuÉDÍAz-BermÚDez, Defendant, Appellant

United States Court of Appeals, First Circuit

February 13, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JOSUÉ DÍAZ-BERMÚDEZ, Defendant, Appellant

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

John T. Ouderkirk, Jr. on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, on brief for appellee.

Before Thompson, Kayatta, and Barron, Circuit Judges.

OPINION

Page 310

KAYATTA, Circuit Judge.

Defendant-appellant Josué Díaz-Bermúdez (" Díaz" ) brings two challenges to the 108-month sentence entered by the district court after he pleaded guilty to one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). After careful consideration, we affirm.

I. Background

Because this appeal follows a guilty plea, we derive the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (" PSR" ), and the sentencing hearing transcript. United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013). The resolution of this appeal does not require a detailed recitation of the facts. It will suffice to say that police officers found two handguns (one of which was fully loaded with a round in the chamber), three magazines, ammunition rounds, more than 700 small bags of crack cocaine, 75 small bags of powder cocaine, and drug paraphernalia in a vehicle in which Díaz was the sole passenger. Shortly after his arrest, Díaz admitted to police officers that the drugs and some of the paraphernalia belonged to him. Later, in his plea agreement, he also admitted that he knowingly and intentionally possessed the discovered firearms in furtherance of a drug trafficking crime.

Díaz was indicted for the firearm offense, 18 U.S.C. § 924(c)(1)(A), as well as

Page 311

one count of possession with intent to distribute an unspecified quantity of powder cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(C), and one count of possession with intent to distribute 28 grams or more of crack cocaine, id. § 841(a)(1), (b)(1)(B). Díaz pleaded guilty to the firearm count pursuant to a written plea agreement. In return, the government agreed to recommend the mandatory minimum and guidelines sentence of 60 months in prison for the firearm count and to ask the court to dismiss the two drug distribution counts. See 18 U.S.C. § 924(c)(1)(A)(i); U.S.S.G. § 2K2.4(b). At sentencing, the district court agreed to dismiss the drug counts, but it rejected the recommended 60-month sentence for the firearm count and instead imposed a 108-month prison sentence. Díaz timely appealed.

II. Analysis

A. Plea Withdrawal


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