As Amended January 14, 2016.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté , U.S. District Judge.
Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief for appellee.
José Ramon Olmo-Rodríguez, with whom Olmo & Rodríguez Matias was on brief for appellant.
Before Barron, Hawkins[*], and Lipez, Circuit Judges.
BARRON, Circuit Judge.
The defendant in this appeal, Osvaldo Rivera-Gonzalez (" Rivera" ), brings a variety of challenges to his federal sentence. Because we agree with one of these challenges, we vacate and remand.
In September of 2013, the Puerto Rico Police Department (the " PRPD" ), while investigating two murders, obtained a search warrant for the home of Rivera's grandmother. After discovering marijuana, a firearm, and a few bullets, the PRPD arrested Rivera, his brother, and his grandmother. Twelve hours later, Rivera, without counsel, gave a statement to the PRPD in which Rivera confessed to the two murders and an assault.
The PRPD turned Rivera over to federal custody. A federal grand jury then returned a four-count indictment against him. The indictment charged Rivera with one count each of: conspiracy to distribute a controlled substance, 21 U.S.C. § § 841(a)(1), 846, possession with intent to distribute a controlled substance, id. § 841(a)(1), possession of a firearm by a prohibited person, 18 U.S.C. § 922(g)(3), and aiding and abetting possession of a firearm in furtherance of a drug crime, id. § § 2, 924(c).
Later, Rivera was also charged in Puerto Rico court with crimes directly related to the murders and assault.
Rivera worked out a plea deal with the federal government, by which he pled guilty to two of the federal indictment's four counts: conspiracy to distribute a controlled substance, 21 U.S.C. § § 841(a)(1), 846, and aiding and abetting possession of a firearm in furtherance of a drug crime, 18 U.S.C. § § 2, 924(c). The plea agreement did not mention the murders or assault.
In the plea agreement, the government and defense counsel agreed to recommend a prison sentence within a United States Sentencing Guidelines (" U.S.S.G." ) range of 0-12 months' imprisonment for the conspiracy conviction. The parties also agreed to recommend a prison sentence of 60 months -- the statutory minimum -- for the § 924(c) conviction. The parties further agreed to recommend that the latter sentence run consecutively to the sentence for the conspiracy conviction, for a total sentence of 60-72 months' imprisonment.
After Rivera pled guilty, the probation office filed a presentence investigation report (" PSR" ). The PSR detailed Rivera's confession to the two murders and assault. The PSR, like the plea agreement, calculated a guidelines sentence of 60 months, the statutory minimum, for the § 924(c) charge. However, in calculating the base offense level for the sentence for the conspiracy conviction, the PSR included a cross reference to the sentencing guidelines for murder convictions. Based on that cross-reference, the PSR identified Rivera's total offense level as 40, resulting ...