United States Court of Appeals For the First Circuit

No. 17-1754

UNITED STATES OF AMERICA,

Appellee,

v.

RODERICK PÉREZ-GONZÁLEZ, a/k/a Canito,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Torruella, Dyk,* and Barron, Circuit Judges.

Raúl S. Mariani-Franco for appellant. Daniel N. Lerman, Attorney, Criminal Division, Appellate Section, United States Department of Justice, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.

July 28, 2020

* Of the Federal Circuit, sitting by designation. BARRON, Circuit Judge. In early 2017, Roderick Pérez-

González pleaded guilty to a drug conspiracy offense in the United

States District Court for the District of Puerto Rico. He now

raises a double jeopardy challenge under the Fifth Amendment to

the United States Constitution to that conviction based on his

earlier prosecution for a federal drug conspiracy crime, to which

he had also pleaded guilty. We affirm.

I.

In July of 2010, a federal grand jury in the United

States District Court for the District of Puerto Rico charged Pérez

with conspiracy to possess with intent to distribute cocaine,

cocaine base, and marijuana around the Columbus Landing Public

Housing Project in Mayagüez, Puerto Rico, in violation of

. The indictment alleged that the conspiracy began roughly

in 2002, continued to the date of the indictment, and involved

Pérez and twenty-seven of his co-defendants. The indictment also

charged Pérez with four additional offenses: three counts of

aiding and abetting in the possession with intent to distribute,

for cocaine base, cocaine, and marijuana, respectively, in

violation of

(a)(1), and one count of conspiracy to

possess firearms during and in relation to drug trafficking crimes

in violation of

(c)(1)(A) and § 924(o).

In April of 2011, Pérez agreed to plead guilty to the

conspiracy to possess with intent to distribute charge in exchange

- 2 - for the government's agreement to request dismissal of the other

counts. Pérez conceded in the plea agreement's statement of facts

that he "acted as a seller for the drug trafficking organization"

at the Columbus Landing Public Housing Project, and that, in so

doing, he "distribute[d] street quantity amounts of crack cocaine,

cocaine, and marijuana" and "possess[ed] and carr[ied] firearms in

order to protect the drug distribution activities and their

proceeds."

The District Court accepted Pérez's guilty plea and

sentenced him to seventy months' imprisonment, which was later

reduced to a prison term of sixty months. In October of 2015,

Pérez completed his sentence and began his term of supervised

release.

Less than a year later, in July of 2016, a federal grand

jury in the United States District Court for the District of Puerto

Rico again charged Pérez with conspiring to possess narcotics with

the intent to distribute in violation of

. Again,

it was alleged that the conspiracy was to sell narcotics within

the Columbus Landing Public Housing Project. This time, though,

the grand jury charged Pérez alongside thirty-nine alleged co-

conspirators and alleged that the conspiracy began around 2010 and

continued up to the date of the 2016 indictment. The new

indictment also charged Pérez with an additional three counts of

aiding and abetting in the distribution of narcotics in violation

- 3 - of

(a)(1) for distributing, respectively, cocaine

base, cocaine, and marijuana. Finally, like the first indictment,

the new one charged him with conspiracy to possess firearms in

furtherance of a drug trafficking crime in violation of

(c)(1) and § 924(o).

Pérez entered into another agreement with the government

in February of 2017. As before, Pérez agreed to plead guilty to

the drug trafficking conspiracy charge in exchange for the

government promising to request the dismissal of the other charges.

The plea agreement incorporated a statement of facts in which Pérez

admitted "that he was a drug point owner of the drug trafficking

organization" at the Columbus Landing Public Housing Project and

that he "controlled and supervised the drug trafficking

operations" there. In the statement of facts, Pérez also

acknowledged that, in his role as a drug point owner, he "was

responsible for directly and indirectly providing sufficient

narcotics to the runners and sellers" of the conspiracy "for

further distribution" and that he "collected the proceeds of the

drug sales and paid [his] co-conspirators."

The plea agreement incorporated a waiver of appeal

provision. In it, Pérez "knowingly and voluntarily waive[d] the

right to appeal the judgment and sentence in this case, provided

that [he] [was] sentenced in accordance with the terms and

conditions" of the deal.

- 4 - The District Court accepted Pérez's guilty plea and

sentenced him, in accord with the plea agreement, to a term of

seventy-two months' imprisonment.1 Pérez then filed a timely

notice of appeal.

II.

The Double Jeopardy Clause of the United States

Constitution bars the United States from prosecuting "a single

person for the same conduct under equivalent criminal laws."

Puerto Rico v. Sánchez Valle,

(2016); see

U.S. Const. amend. V. Pérez contends that his second prosecution

for conspiracy in violation of

impermissibly put

him "twice" "in jeopardy" "for the same offense," U.S. Const.

amend. V, because it was for the same underlying conduct as his

prior prosecution for violating that statute.

The government responds in part that Pérez's waiver of

appeal in his plea agreement requires that we dismiss this

challenge. But, even if it is not waived because a double jeopardy

violation would work a "miscarriage of justice," Sotirion v. United

States,

(1st Cir. 2010) (quoting United States v.

Teeter,

(1st Cir. 2001)), the challenge still

fails.

1 At the same hearing, the District Court sentenced Pérez to an additional eighteen months' imprisonment for violating the conditions of release for his initial conviction and ordered the two sentences to run consecutive to one another.

- 5 - So long as the record supplies "a rational basis" for

concluding that two counts to which a defendant has pleaded guilty

are "predicated on different conduct," United States v.

Stefanidakis,

(1st Cir. 2012), then the defendant

has, by pleading guilty twice, "concede[d] that he has committed

two separate crimes," United States v. Broce,

(1989). Moreover, a defendant who has pleaded guilty cannot

"contradict the 'admissions necessarily made upon entry of a

voluntary plea of guilty.'" United States v. Class,

(2018) (quoting Broce,

). Thus, a

defendant who brings a double jeopardy challenge to a second

prosecution in which he pleaded guilty based on a prior one in

which he did the same is limited to the facts contained in the

"indictments and the existing record." Class,

(quoting Broce,

). Because Pérez did not raise his

challenge below, we apply plain error review. See Stefanidakis,

; see also United States v. Ríos-Rivera,

(1st Cir.) (treating an unpreserved challenge to a

conviction entered after a guilty plea as forfeited when it targets

"the government's authority to prosecute a defendant"), cert.

denied,

(2019). We conclude he cannot meet that

standard because there is a "rational basis" for finding that the

conduct underlying the first federal conspiracy conviction is

- 6 - distinct from the conduct underlying the second, to which he also

pleaded guilty.

Here, Pérez correctly notes that the two conspiracy

prosecutions concerned conduct at the same "places" and charged

him with violations of "the same statutory provision." United

States v. Laguna-Estela,

(1st Cir. 2005). But, the

record still reveals that there is a rational basis to conclude

that the two conspiracies were distinct.

The record shows that the counts in question charged

conspiracies that began on different dates, ended on different

dates, and, despite spanning a fourteen-year period, overlapped

for about six months at most. See United States v. Collazo-Aponte,

(1st Cir. 2000) (holding two conspiracies to be

distinct, in part because they "involve[d] different time periods"

despite a year-long overlap), vacated on other grounds,

(2001); Broce,

(looking at the different start

dates of conspiracies to find them facially distinct). Pérez urges

that we adopt a rule that would "solely require[] [the] defendant

to establish that the charged conspiracy was committed within the

same overlapping period[] as his prior acquittal or conviction for

the same offense," but, as he recognizes, our precedent rejects

such a rule. See, e.g., Laguna-Estela,

(finding

two conspiracies distinct in spite of an overlap in time period);

- 7 - see also United States v. Barbosa,

(1st Cir. 2018)

(discussing the law-of-the-circuit doctrine).

In addition to the temporal distinctions between the two

charged conspiracies, a review of the counts in question shows

that the charged conspiracies involved many distinct participants.

Specifically, they were alleged to have involved, respectively,

twenty-eight and forty co-conspirators, with only four

individuals, including Pérez himself, overlapping. See United

States v. Booth,

(1st Cir. 1982) (finding two

conspiracies distinct in part because only ten individuals

participated in both conspiracies and thus "the persons involved

in the two conspiracies [were] substantially different"). The

record also shows that Pérez played a different role in each

conspiracy (as a seller and drug point owner, respectively). See

Laguna-Estela,

(finding two conspiracies distinct

in part due to evidence that the defendant's role in each

conspiracy was different). And, while the second conspiracy aimed

to sell all the same drugs as were involved in the first conspiracy

-- cocaine, cocaine base, and marijuana -- it also involved the

sale of two additional drugs -- Percocet and Xanax -- that were

not identified in the first indictment. See Broce,

(deeming two conspiracies facially distinct in part because

they "embraced separate objectives").

- 8 - Thus, there is ample support for finding that Pérez has

"conceded guilt to two separate offenses."

.

Accordingly, we affirm the conviction that Pérez challenges.

- 9 -