United States Court of Appeals For the First Circuit

No. 18-1768

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD GERARDO CORTÉS-MALDONADO, a/k/a Richard Cortés-Maldonado,

Defendant, Appellant.

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

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Howard, Chief Judge, Lynch and Barron, Circuit Judges.

Mariángela Tirado-Vales on brief for appellant. Julia M. Meconiates, Assistant United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

September 25, 2019 LYNCH, Circuit Judge. Richard Gerardo Cortés-Maldonado

("Cortés") pled guilty to being a felon in possession of firearms

and ammunition. The sentencing calculations and recommendations

in his plea agreement were not binding on the district court, which

so advised Cortés at his change of plea hearing. He now argues

that the district court should have warned him that he might face

certain guideline enhancements and that it failed to properly

calculate his criminal history category. Finding no error, we

affirm.

I.

On March 16, 2017, while executing an arrest warrant,

Puerto Rico Police Department officers found three guns and three

magazines in Cortés's house. Cortés was arrested and, after

waiving his Miranda rights, admitted that the weapons were his,

that he used them to protect the location where he sold drugs,

that he had a prior felony conviction, and that there were

outstanding warrants for his arrest.

Cortés pled guilty to being a felon in possession of

firearms and ammunition. His plea agreement, negotiated pursuant

to Fed. R. Crim. P. 11(c)(1)(B), contained an agreed-on recommended

guideline calculation that began with a base offense level of 22,

added two levels because the offense involved three firearms, and

subtracted three levels for acceptance of responsibility, for a

total offense level of 21. The parties did not stipulate to a

- 2 - criminal history category but agreed to recommend a guideline

sentence based on the total offense level and Cortés's criminal

history category as determined by the district court.

At his change of plea hearing, Cortés told the district

court he discussed the plea agreement with his attorney and

understood it completely. The court told Cortés that it was not

bound by the sentencing recommendations in the plea agreement and

could impose a sentence above or below the guideline range, which

Cortés acknowledged.

The final presentence report ("PSR") added another two-

level enhancement to Cortés's offense level because one of the

firearms was stolen, for a total offense level of 23. The PSR

stated that Cortés had previously been convicted of theft, property

damage, and drug offenses in Puerto Rican courts, for which he had

been sentenced to five years' imprisonment. That Puerto Rican

sentence had been immediately suspended. Nonetheless, Cortés then

became a fugitive, causing the revocation in absentia of the

suspension and the imposition of the full five-year term. Based

on those offenses, the PSR stated Cortés's criminal history score

to be five--three points for the five-year sentence, U.S.S.G.

§§ 4A1.1(a), 4A1.2(k)(1), and two points because the federal

offense was committed while Cortés was a fugitive, id. § 4A1.1(d)--

resulting in a criminal history category III designation. On

- 3 - these bases, the PSR calculated a guideline sentence of 57 to 71

months.

Cortés objected to this calculation, arguing that his

previous conviction warranted only one criminal history point

because of its earlier suspension. He did not dispute that

suspension had been revoked and the full five-year term ordered.

He also argued that the enhancement in the final PSR for the stolen

firearm resulted in "inherent unfairness," noting that the plea

agreement, reached earlier, did not mention the enhancement and

that his defense lacked access to databases of stolen weapons.

Based on what he calculated as a total offense level of 21 and a

criminal history category of II, Cortés sought a guideline sentence

of 41 to 51 months.

At sentencing, the district court calculated the

guideline sentence based on the findings in the PSR.

Acknowledging Cortés's argument that his criminal history category

should be II, the district court then stated that, "regardless of

whether [Cortés's] argument is correct and the Criminal History

Category is II or the criminal category is III, the Court still

finds that a . . . non-guideline sentence is appropriate in this

case" because of its facts. The district court then imposed a

sentence of 84 months followed by three years of supervised

release.

- 4 - II.

Cortés now advances two challenges to his conviction.

He first argues that his guilty plea was unknowing and involuntary

because the district court did not inform him of the possibility

of a stolen firearm enhancement. He then argues that the district

court incorrectly calculated his criminal history category.

Cortés agrees that, because he did not challenge the

integrity of his plea in the district court, our review of his

first challenge is for plain error. United States v. Jones,

(1st Cir. 2015). With respect to his second

challenge, we review the district court's interpretation and

application of the sentencing guidelines de novo. United States

v. McCormick,

(1st Cir. 2014).

Cortés shows no error, much less plain error, as to the

acceptance of the plea or in the district court's application of

the stolen firearm enhancement. We have already held that the

strict-liability application of the guidelines' firearm

enhancement does not violate due process, see United States v.

Gonzalez,

(1st Cir. 2017), and that a district

court need not inform a defendant at a Rule 11 plea hearing of

sentencing enhancements that may eventually attach, Jones,

.

Cortés also contends that he was not made aware of the

fact that led to the application of the firearm enhancement--

- 5 - namely that the firearm was stolen--prior to his plea and that he

had no access to the database that would have shown that the gun

was stolen. Thus, he argues, his plea was unknowing and

involuntary. But Cortés cites no precedent to support this

assertion, nor are we aware of any. We thus agree with the

government that this argument is waived for lack of development.

See United States v. Zannino,

(1st Cir. 1990).

The district court's application of the sentencing

guidelines was also correct. The measure of the sentence for

Cortés's prior conviction is the total five-year sentence imposed

after its suspension was revoked. U.S.S.G. § 4A1.2(k)(1).

Because five years is longer than one year and one month, the

district court rightly counted that conviction as three criminal

history points. Id. § 4A1.1(a). It then correctly added two

additional points for Cortés's fugitive status at the time of the

offense. Id. § 4A1.1(d).

The application of these two points is independent of,

and does not violate, the limit of three points for a single

offense discussed by § 4A1.2's Application Note 11. The note

explains how to count the points of convictions for which an

additional sentence was imposed after revocation. The note has

no relevance to the two points imposed under § 4A1.1(d) for

offenses committed while under a criminal justice sentence, which

apply separately. See United States v. Rivera-Berrios, 902 F.3d

- 6 - 20, 26 (1st Cir. 2018) (affirming a finding of five criminal

history points where defendant had one prior conviction and

committed the instant offense while on probation).

At any rate, any error in the district court's

calculation of Cortés's criminal history category is harmless

where that court specifically stated it would have imposed the

same sentence had Cortés's criminal history category been II or

III. See United States v. Tavares,

(1st Cir. 2013).

Affirmed.

- 7 -