United States Court of Appeals For the First Circuit

No. 15-1307

UNITED STATES OF AMERICA,

Appellee,

v.

FERNANDO DÍAZ-RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Thompson, Kayatta, Circuit Judges.

Joshua L. Solomon and Pollack, Solomon, Duffy LLP on brief for appellant. Tiffany V. Monrose, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez- Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

March 13, 2017 THOMPSON, Circuit Judge. Appellant Fernando Díaz-

Rodríguez ("Díaz") pled guilty to aiding and abetting others in

the possession of a firearm that was discharged during a robbery

in violation of

(c)(1)(A)(iii) and 2. On appeal,

Díaz argues that his sentence should be vacated for lack of a

factual basis to support his guilty plea. After careful review,

we affirm the district court's sentence.

Background1

The facts of this case are largely undisputed. On

September 1, 2010, two employees of the Ranger American Armored

Services were driving an armored truck on their normal delivery

route. When they arrived at the Morovena Credit Union in Morovis,

Puerto Rico to deliver $80,000 to the bank, they were attacked by

several armed robbers who pulled up behind them in a dark-grey

Toyota. Díaz was one of the robbers. During the course of the

heist, one robber struck the employee who had exited the armored

truck with the cash in the back of the head, while another robber

pointed a .357 Magnum at that employee. The employee ultimately

threw the bag of money to the ground and one robber picked it up.

Díaz then grabbed the employee in a bear-hug from behind and the

employee noticed that he, too, was carrying a gun. The robber

1 Because this sentencing appeal follows a guilty plea, we gather the pertinent facts from the change-of-plea colloquy and plea agreement. United States v. Ríos-Hernández,

(1st Cir. 2011).

- 2 - wielding the .357 Magnum then fired shots in the direction of both

the employee and Díaz. Díaz was struck in the left arm and left

leg, the employee was shot in the abdomen, and they both collapsed

to the ground. Another rifle-toting robber fired at the second

Ranger American employee who had remained inside the armored truck,

but he managed to drive away and escape the scene. Then the

robbers attempted to shoot the remaining wounded employee in the

head. Fortunately, the robbers were out of ammunition and the

employee was able to escape. The robbers, including Díaz, then

re-entered the dark-grey Toyota and drove off, but were later

apprehended by authorities.

On March 3, 2011 the government filed a superseding two-

count indictment charging Díaz with aiding and abetting others in

the robbery of a bank armored truck in violation of

and 2 (Count One) and with carrying and using a

firearm that was discharged during and in relation to the robbery

in violation of

(c)(1)(A) and 2 (Count Two). Count

Two did not actually use the words "aiding and abetting" as Count

One did; however, it did cite to the aiding and abetting statute

at

(which specifically provides that "[w]hoever

commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is

punishable as a principal").

- 3 - On October 3, 2014, the parties entered into a plea

agreement (the "Agreement"). By the precise terms of the

Agreement, Díaz agreed to plead guilty to Count One, which

"charge[d] that [Díaz], aiding and abetting others, did obstruct,

delay, and affect commerce, and the movement of articles and

commodities in such commerce, by robbery in violation of

and 2." Díaz also agreed to plead guilty to Count Two,

which "charge[d] that [Díaz], aiding and abetting others, did

knowingly carry and use a firearm, which firearm was discharged,

during and in relation to [the robbery charged in Count One]."

The parties also agreed to the statutory penalties applicable to

both counts. In relevant part, the parties agreed that Count One

had a statutory maximum imprisonment term of no more than twenty

years (or 240 months) pursuant to

. The parties

also agreed that Count Two had a mandatory minimum term of not

less than ten years (or 120 months) and a potential maximum of

life imprisonment pursuant to

(c)(1)(A)(iii).

For the purposes of calculating Díaz's sentence under

the United States Sentencing Guidelines Manual ("Guidelines"), the

parties further agreed to a total offense level of 28 for Count

One, made no determination as to the applicable criminal history

category, and agreed that Count Two was subject to a 120-month (or

ten year) mandatory minimum to run consecutively to Count One.

The Agreement also contained a waiver-of-appeal clause which

- 4 - provided that Díaz knowingly and voluntarily waived the right to

appeal the judgment and sentence in his case, provided that he was

sentenced in accordance with the terms and conditions set forth in

the sentencing recommendation provisions of the Agreement.

On October 3, 2014, Díaz pled guilty to both counts of

the indictment and on February 18, 2015, finding an applicable

criminal history category of III and a total offense level of 28,

the court sentenced Díaz in accordance with the terms of the plea

agreement to 120 months as to Count One and another 120 months as

to Count Two, to be served consecutively. Díaz did not challenge

the court's sentencing nor did he attempt to withdraw his guilty

plea.

Díaz now appeals his sentence, arguing that the court

incorrectly sentenced him to 120 months as to Count Two (Díaz does

not challenge the court's sentence as to Count One). Díaz argues

that although he signed a plea agreement with a waiver-of-appeal

clause and was sentenced in accordance with that agreement, his

sentence on Count Two should be reversed because the court did not

properly calculate the applicable Guidelines range. Specifically,

Díaz argues that there was an insufficient factual basis for the

court's acceptance of his guilty plea as to Count Two.

Discussion

Before turning to the merits of this appeal, we pause to

note that the Agreement contained a waiver-of-appeal provision

- 5 - that foreclosed any appeal so long as Díaz was sentenced in

accordance with the agreement's terms. Accordingly, the

government argues that because Díaz was sentenced in accordance

with the terms of his plea agreement, he has waived his right to

appeal. Díaz contends that his arguments on appeal are not within

the scope of the waiver-of-appeal clause because the district court

improperly calculated the applicable Guidelines range. We need

not tarry with the parties' waiver arguments. Because Díaz's

claims can be easily resolved on the merits, we assume arguendo

that the waiver-of-appeal provision does not bar maintenance of

his appeal. See United States v. Sánchez-Maldonado,

(1st Cir. 2016).

Here, Díaz's primary contention is that the district

court erred in accepting his guilty plea (with regards to Count

Two) because there was no factual basis for the intent element of

the aiding and abetting charge to which he pled guilty. Because

Díaz did not present the issue of an insufficient factual basis to

the district court, he now "faces the 'heavy burden' of plain-

error review and must" demonstrate that a clear error occurred,

which "affected [his] substantial rights [and] seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." United States v. Delgado-López,

(1st Cir. 2016) (alterations in original) (quoting United States

- 6 - v. Ramos-Mejía,

(1st Cir. 2013)). Díaz can make

no such showing.

Our inquiry is guided by both Rule 11 of the Federal

Rules of Criminal Procedure and the aiding and abetting statute,

. Federal Rule of Criminal Procedure 11(b)(3)

requires that a court determine the factual basis for a guilty

plea prior to entering judgment on that plea. Under Rule 11, the

necessary showing for the "factual basis" requirement is "fairly

modest" and "the evidence need not conclusively demonstrate guilt

beyond a reasonable doubt." Ramos-Mejía,

(citing

United States v. Pimentel,

(1st Cir. 2008)).

Indeed, "the government need only show a rational basis in fact

for the defendant's guilt."

(citing Pimentel,

;

United States v. Delgado-Hernández,

(1st Cir.

2005)). "[T]he government is [also] not required to support every

element of the charged crime by direct evidence" and a district

court "may infer '[t]he factual predicate for the requisite mens

rea . . . from all the evidence alluded to at the Rule 11 hearing."

"[A] person is liable under [18 U.S.C.] § 2 for aiding

and abetting a crime if (and only if) he (1) takes an affirmative

act in furtherance of that offense, (2) with the intent of

facilitating the offense's commission." Rosemond v. United

States,

(2014). In Rosemond, the Supreme

- 7 - Court held that in order to meet the intent requirement when

accusing a defendant of aiding or abetting a § 924(c) offense, the

government must show "that the defendant actively participated in

the underlying drug trafficking or violent crime with advance

knowledge that a confederate would use or carry a gun during the

crime's commission." Id. at 1243. The Supreme Court defined

"advance knowledge" as "knowledge at a time the accomplice can do

something with it -- most notably, opt to walk away." Id. at 1249-

50.

Relying on Rosemond, Díaz argues that there was an

insufficient showing that he had advance knowledge that his fellow

robbers would carry or discharge firearms during the robbery and

therefore there was an insufficient factual basis to support the

intent requirement of the aiding and abetting offense. The

government argues that there was a sufficient factual basis to

satisfy the intent element of the aiding and abetting statute.

During Díaz's change-of-plea colloquy, the court

detailed the charges to which Díaz was pleading guilty. With

regard to the relevant aiding and abetting count (Count Two) the

following exchange took place:

THE COURT: And Count Two charges that you knowingly carried and used a firearm and that the firearm was discharged during and in relation to a crime of violence for which you may be prosecuted in the Court of the United States, which was the interference with commerce and robbery that is set forth in

- 8 - Count One, and aiding and abetting others to do that. As to Count Two, Mr. Díaz, is that what did you [sic]?

[DÍAZ]: Yes, sir.

THE COURT: Is that what you are pleading guilty to?

[DÍAZ]: Yes, sir.

THE COURT: The maximum and minimum punishment that the law provides for the offenses to which you want to plead guilty are as follows . . . . So, Mr. Díaz, for Count Two, the term of imprisonment, as I told you is not less than 10 years, 120 months, and can go up to life imprisonment. . . . Do you understand all those serious possible consequences of your plea of guilty?

[DÍAZ]: Yes, sir.

The government then described the facts and evidence it

would have presented at trial to prove its case: namely that Díaz

was an accomplice involved in the armored truck robbery; that

several robbers, including Díaz himself possessed weapons during

the course of the robbery; that at least two weapons, including a

.357 Magnum and a rifle, were discharged and in fact injured a

victim during the robbery; and that Díaz partook in and facilitated

the robbery until the very end when the robbers fled the scene.

The district court then asked Díaz whether he "agree[d]

with the Government's version [of the facts]." He responded that

- 9 - he agreed and admitted to committing the crime as described by the

prosecutor.

In light of his factual concessions, we find that there

was a sufficient basis to support the requisite intent for aiding

and abetting possession of a firearm that was discharged during

the course of the robbery. "[A]s long as the government's

proffered facts, conceded by the defendant to be true, touch all

the bases, there is a sufficient factual basis for the tendered

plea." United States v. Jiminez,

(1st Cir. 2007).

And "[t]he facts relevant to [the Rule 11 'factual basis'] inquiry

may be gleaned either from the defendant's admissions or from the

prosecution's version of the evidence (to the extent that it is

acknowledged by the defendant)."

.

Here, Díaz agreed with the statement of facts presented

by the government both at his change-of-plea hearing and within

his signed plea agreement. He admitted that he was in a vehicle

with confederates -- all of whom possessed weapons, including a

.357 Magnum and a rifle -- and that they robbed an armored truck.

He admitted that he himself possessed a weapon that was brandished

during the robbery and that his armed confederates discharged their

weapons from the moment they exited their vehicle until they ran

out of ammunition or drove away from the crime scene. Díaz also

conceded that he held one of the victims of the robbery in a bear-

hug while a fellow robber "opened fire" on the victim and Díaz.

- 10 - After the victim was hit, and even after Díaz himself had been

wounded, Díaz conceded that he remained in confederation with his

fellow robbers, one of whom used his rifle to shoot at a second

victim. After both victims eventually escaped, Díaz entered the

same vehicle he arrived in with his fellow confederates and fled

the crime scene. These concessions form a rational basis for

accepting Díaz's guilty plea and make Díaz's arguments that he did

not know that his confederates possessed and planned to use their

weapons highly unlikely. See United States v. Laracuent,

(1st Cir. 2015) (suggesting that where a defendant "agreed

that he himself knowingly and unlawfully possessed" firearms used

in furtherance of a drug-trafficking offense, his arguments that

he lacked advance knowledge that one of his confederates would

carry a gun were "particularly flimsy.").

At the very least, even if Díaz was unaware that his

confederates possessed and intended to discharge their weapons

prior to arriving at the crime scene, either after his armed

confederates began shooting at the victims upon exit from their

vehicle or certainly after a fellow robber used his weapon to shoot

at a victim who Díaz restrained in a bear-hug or, again, after

another robber used his rifle to shoot at a second victim, Díaz

was afforded ample opportunities upon which he possessed the

knowledge necessary to "enable[] him to make the relevant legal

(and indeed, moral) choice." Rosemond,

.

- 11 - Indeed, he possessed the relevant "knowledge at a time [he could]

do something with it -- most notably, opt to walk away."

. Yet, despite obtaining the requisite knowledge regarding

his confederates' possession and use of weapons in sufficient time

to withdraw from the crime -- in multiple instances, Díaz simply

chose otherwise.

Based on Díaz's own concessions, the district court

properly concluded that the government had proffered sufficient

facts to form a rational basis from which to infer that Díaz

possessed the requisite intent for his guilty plea. See Ramos-

Mejía,

.

Before concluding, we tie up some loose ends raised by

Díaz himself. Despite being represented by competent counsel,

Díaz requested and was granted permission to file a supplemental

pro se brief. In that brief, Díaz argues that: (1) he was not

placed on "sufficient notice" that he was pleading guilty to an

aiding and abetting charge; (2) the indictment was "fatally

defective" because it did not include the "aiding and abetting"

statutory language in Count Two; (3) the district court failed to

take into account his age at sentencing; and (4) the district court

erred in failing to grant him a downward departure due to his

physical injuries. Like those of his counsel, Díaz's pro se

arguments are equally unavailing.

- 12 - First, the unambiguous terms of the plea agreement

itself make clear that Díaz agreed to plead guilty to "aiding and

abetting others" who carried and used a discharged weapon during

the course of the robbery (Count Two). "In the plea-bargain

context, the text of the plea agreement and the content of the

change-of-plea colloquy are critically important to a

determination of knowledge and volition." United States v. Teeter,

(1st Cir. 2001). Here, despite Díaz's contentions,

both the text of the plea agreement and the record of the change-

of-plea colloquy demonstrate that he knowingly and voluntarily

pled guilty to aiding and abetting others in the use of a

discharged firearm during and in relation to the robbery (Count

Two).

And while the facts as described by the government, and

affirmed by Díaz, contained no mention of his gun being discharged,

there can be no confusion that Díaz clearly pled guilty to aiding

and abetting others whose firearms were discharged, as the district

court clearly indicated such during the change-of-plea colloquy.

Next, Díaz's contention that the indictment was fatally

defective because it did not include the "aiding and abetting"

statutory language also fails. The indictment did explicitly cite

the aiding and abetting statute,

. Absent any "unfair

surprise," that was more than enough. See United States v.

Sanchez,

(1st Cir. 1990) ("Aiding and abetting

- 13 - is 'an alternative charge in every . . . count, whether explicit

or implicit.'" (quoting United States v. McKnight,

(8th Cir. 1986))). Accordingly, the indictment here was more

than sufficient when it clearly indicated that Díaz was being

charged pursuant to the aiding and abetting statute,

.

Díaz also argues that the district court ignored

(a) factors because it failed to consider his age at

sentencing. To the contrary, the record demonstrates that the

court fully considered Díaz's age, noting that he was "over 54

years old," had a "seventh grade education," and that he was a

"father of three children and a grandfather of four." "That [Díaz]

would prefer an alternative weighing of the circumstances [and

specifically his age] does not undermine the district court's

sentencing decision." See United States v. Rossignol,

(1st Cir. 2015).

Lastly, Díaz argues that the district court should have

granted him a downward departure because of his physical

impairments under § 5H1.4 of the Guidelines, which provides that

"[a]n extraordinary physical impairment may be a reason to depart

downward." "As a general rule, a district court's refusal to grant

a downward departure is not appealable" unless "the sentencing

court's decision 'not to depart is based on the court's mistaken

view that it lacks the legal authority to consider a departure.'"

- 14 - United States v. LeBlanc,

(1st Cir. 1994) (quoting

United States v. Hilton,

(1st Cir. 1991)). Based

on the record, we believe that the district court fully understood

its ability to depart under § 5H1.4, but simply chose not to do

so.

The court heard arguments from both Díaz and the

government regarding his physical impairments and even noted its

consideration of Díaz's physical ailments and whether he could

receive adequate treatment in custody, remarking that "[t]he issue

to [the court] is whether [Díaz] can be treated either at a prison

hospital or at a Care Level 2 facility." Ultimately, the court

determined that Díaz could receive adequate treatment while in

custody, recognizing that "Mr. Díaz requires medical treatment for

the leg wound he received during the robbery" and that "[t]he Court

[would] recommend that he be allowed to benefit from medical care

offered by the Bureau of Prisons." There is nothing in the record

which indicates that the district court was mistaken about its

power to depart downward based on Díaz's medical impairments.

Conclusion

For the foregoing reasons, we find no error in the

district court's acceptance of Díaz's guilty plea with regards to

the aiding and abetting count (Count Two).

Affirmed.

- 15 -