FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO HON. JOSÉ ANTONIO FUSTÉ, U.S.
Pimentel Soto and Kendys Pimentel Soto Law Office, on brief
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant U.S. Attorney,
Chief, Appellate Division, and John A. Mathews II, Assistant
U.S. Attorney, on brief for appellee.
Lynch, Stahl, and Thompson, Circuit Judges.
Rafael Tanco-Pizarro ("Tanco-Pizarro") seeks review
of his guilty plea and his resulting sentence for being a
felon in possession of a firearm. The district court accepted
his guilty plea and subsequently sentenced him to 57 months
in prison and three years of supervised release. That
sentence was to be served consecutive to his earlier sentence
for violating the terms of his supervised release.
Tanco-Pizarro claims his guilty plea was not knowing and
voluntary, that the government breached the plea agreement it
entered into with him, and that the court violated his right
to allocution. After careful review, we affirm.
Factual Background and Prior Proceedings
2006, Tanco-Pizarro was arrested and convicted of using a
firearm in connection with a drug crime and was sentenced to
60 months in prison followed by five years of supervised
release. On September 19, 2015, during his period of
supervised release, police officers discovered Tanco-Pizarro
after an automobile accident in possession of an AK-47 type
rifle, a Glock pistol, and ammunition. Subsequently,
Tanco-Pizarro was sentenced to 60 months in prison for
violating the terms of his supervised release. Thereafter, on
December 21, 2015, Tanco-Pizarro pled guilty pursuant to a
plea agreement to possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1) and 18
U.S.C. § 924(a)(2).
relevant provisions of Tanco-Pizarro's plea agreement are
the following. Paragraph 7 stipulates a total adjusted
offense level of 19 and sets forth the applicable guideline
sentencing recommendations for criminal history categories I
to III. Paragraph 8 states that "[t]he parties do
not stipulate as to any Criminal History Category
for defendant." (Emphasis in original). Paragraph 9
The parties agree that the defendant may request a sentence
at the low end of the determined applicable guideline range
stipulated in paragraph 7 of this Plea Agreement as to Count
One. The government may argue for any sentence at the upper
end of the applicable guideline range stipulated in paragraph
7 of this Plea Agreement as to Count One.
10 provides that Tanco-Pizarro waives his right to appeal so
long as he "is sentenced in accordance with the terms
and conditions set forth in the Sentence Recommendation
provisions of this Plea Agreement."
the change of plea hearing on December 21, 2015, the court
informed Tanco-Pizarro that the range of sentences discussed
in the plea agreement was only a recommendation and that the
court retained the ultimate authority to determine his
sentence, to which the defendant replied that he understood.
The court also discussed the waiver of appeal provision in
the plea agreement, and Tanco-Pizarro responded that he
understood that he was waiving his right of appeal. Finally,
when the court asked whether "[t]his is the entire Plea
Agreement, " Tanco-Pizarro agreed that nothing else had
been promised to him. Although defense counsel requested a
sentence that would run concurrently with Tanco-Pizarro's
revocation sentence, defense counsel explained that
Tanco-Pizarro knew it was up to the court to determine his
sentencing hearing was held on April 6, 2016. The presentence
report calculated his total offense level as 19 and his
criminal history category as IV, resulting in a guideline
range of 46 to 57 months. The court asked whether defense
counsel had any allocution he wanted to make and stated that
"of course [Tanco-Pizarro] can address the Court."
After defense counsel argued for a sentence of 46 months, the
court twice ...