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United States v. Tanco-Pizarro

United States Court of Appeals, First Circuit

October 6, 2017

UNITED STATES OF AMERICA, Appellee,
v.
RAFAEL TANCO-PIZARRO, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO HON. JOSÉ ANTONIO FUSTÉ, U.S. DISTRICT JUDGE

          Kendys Pimentel Soto and Kendys Pimentel Soto Law Office, on brief for appellant.

          Rosa 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.

          Before Lynch, Stahl, and Thompson, Circuit Judges.

          STAHL, Circuit Judge.

         Appellant 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.

         Here, 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.

         I. Factual Background and Prior Proceedings

         In 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).

         The 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 reads:

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.

         Paragraph 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."

         During 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 ultimate sentence.

         Tanco-Pizarro's 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 ...


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