Escolar Documentos
Profissional Documentos
Cultura Documentos
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
April 1, 2016
Urbina appealed.
Early in the
The robbers then drove away in the father's car, and the father
called the police.
A grand jury indicted Urbina for carjacking, 18 U.S.C.
2119, and carrying a firearm during and in relation to a crime
of violence, 18 U.S.C. 924(c). Urbina initially pled not guilty.
On November 14, 2013, however, Urbina moved to change his plea.
At a hearing on November 27, 2013, he pled guilty to both counts
of the indictment.
On April
That
Id. (emphasis
added).
The indictment does not refer to the words "the person
or presence."
Urbina contends
crime, Urbina argues, does not require the same showing of the
car's proximity to the person from whom it has been taken as does
the latter formulation, which is the one that the carjacking
statute uses.
(1st
Cir.
2004)
(discussing
the
proximity
- 3 -
required
by
the
carjacking statute).
Accordingly, Urbina
811 F.3d 517, 518 (1st Cir. 2016) (holding that, absent exceptions
not
applicable
here,
an
unconditional
guilty
plea
waives
III.
To argue that his guilty plea should be vacated, Urbina
points to what he contends were the District Court's violations of
various Federal Rule of Criminal Procedure 11 requirements at his
- 4 -
plea colloquy.
violations is for plain error, because he did not raise them below.
See United States v. Dominguez Benitez, 542 U.S. 74, 80 (2004).
And so Urbina concedes that he must show as to each one "(1) an
error,
(2)
that
is
clear
or
obvious,
(3)
which
affects
his
resulting from a guilty plea, to meet the third prong, Urbina must
show that there is a reasonable probability that, but for the
error, he might not have pled guilty. See United States v. GandiaMaysonet, 227 F.3d 1, 4-5 (1st Cir. 2000).
But while Urbina argues that he satisfies this standard
as to each Rule 11 violation, he does not in fact meet it as to
any.
- 5 -
Urbina
thus argues that his plea should be vacated because the District
Court violated Rule 11(b)(1)(G), which required the District Court
to "inform the defendant of, and determine that the defendant
understands . . . the nature of each charge to which the defendant
is pleading."
Our prior decisions in Gandia-Maysonet, 227 F.3d 1, and
United States v. Delgado-Hernandez, 420 F.3d 16 (1st Cir. 2005),
provide
the
framework
for
assessing
this
challenge.
As
we
the
fact-finding
process,
reviewing
courts
have
been
227 F.3d at 3
understands
the
elements
of
the
charges
that
the
- 6 -
auto theft entails taking a car from the possession of the car's
owner -- regardless of how proximate the car is to the victim when
it is taken -- not every auto theft entails taking the car from
"the person or presence" of the owner.
In such cases,
the error thus might not undermine the Rule 11 requirement's "core
concern": ensuring that "the defendant understands the elements of
the charges that the prosecution would have to prove at trial."
Gandia-Maysonet, 227 F.3d at 3.
But here, as we have noted, the indictment itself
misstated the element that the car be taken "from the person or
presence" of the victim.
include the words "the possession of" that the government contends
(wrongly) were an adequate substitute for the words Congress used
to establish the element.
that Urbina was charged with taking the vehicle "from" the victim
"by force, violence, and intimidation."
- 7 -
agreement that might have provided Urbina with the requisite notice
of the element in question.2
Notwithstanding the significance of the misstatement in
the colloquy, Urbina still does need to show that there is a
reasonable probability that he would not have pled guilty had the
Rule 11 colloquy been conducted without this error.
Maysonet, 227 F.3d at 4-5.
See Gandia-
On
The discovery
in
identification
the
of
crime,
Urbina
the
by
government
the
victim
As proof of Urbina's
had:
of
an
the
eyewitness
crime,
the
surveillance video mentioned above, and the fact that the victim's
car keys and a bottle of champagne stolen from the victim were
both found in Urbina's residence.
Given this record, Urbina's bare contention that there
is a reasonable probability that he might have pled differently if
the colloquy had properly described the element that the indictment
misstated is not enough.
Urbina also argues, for the first time on appeal, that the
District Court's misunderstanding of the person or presence
- 9 -
B.
We now consider Urbina's other Rule 11 challenges. Each
of them also fails, either because there was no error at all,4 or
because Urbina cannot show prejudice.
1.
The first of these challenges concerns Rule 11(b)(1)(H),
which required the District Court to inform Urbina of "any maximum
possible penalty, including . . . supervised release."
The
sentence of life.
overstatement
of
the
potential
period
of
supervised
release could have affected his plea decision, given that he knew
he was facing a lengthy prison term.
sentencing
guidelines.
Without
that
reduction,
Urbina's
to
order
restitution,"
and
Rule
11(b)(1)(L),
which
- 11 -
how the errors prejudiced him, and we do not see how, on this
record, he could.
the
applicable
sentencing-guideline
range,
and
to
and
other
sentencing
factors
under
18
U.S.C.
3553(a)."
The
comparable
to
the
significant
misstatements
of
possible
560 F.3d at
Id. at
Nor does he give any account as to why, but for the District
- 13 -
C.
None of this is to minimize the District Court's multiple
failures to follow the requirements of Rule 11.
The Rule's
But Urbina,
who did not object to any of the Rule 11 errors in the district
court, has not met his burden on plain error review.
And that is
no less true even if we consider -- as Urbina says we should -all of the Rule 11 violations together, given the substantial
evidence of Urbina's guilt, the lengthy prison sentence that he
faced, and the benefit that he received because of his plea.
IV.
Finally, Urbina challenges his sentence.
He contends
Urbina
contends
that
the
District
Court
committed
Cir. 2014).
- 14 -
resulted
from
the
carjacking
offense,
see
USSG
They also hit the father on the head multiple times with
- 15 -
As a
result of that conduct, the father had a lesion on his head, and
he and his son had multiple bruises on their faces and heads.
Both the father and son also have continued to receive
psychological and psychiatric treatment since the night of the
crime.
Despite
In
obvious
enhancement.
error
in
applying
the
"serious
bodily
injury"
523 (5th Cir. 1994), a case Urbina cites, held that a victim's
"post-traumatic stress syndrome" from a robbery did constitute
"serious bodily injury" under the sentencing guidelines.6
Id. at
530-31.
cannot say on this record that the District Court "clear[ly] and
obvious[ly]"
enhancement
erred
in
the
in
applying
absence
of
the
any
serious
bodily
objection
from
injury
Urbina.
2B3.1(b)(7)(C)(2013),
after
finding
that
the
offense
presentence report states that the loss from the offense was only
$40,000, and that the District Court overestimated the amount lost.
Urbina is wrong.
does not contest -- does state that Urbina took $40,000 in cash
from the victim's safe.
Urbina and his accomplices also took "other valuables such as Ipads
[sic], video games, bottles of wine, jewelry, [and the victim's]
car, among other things."
- 17 -
that the crime caused a loss of more than $50,000, and applying
the two-level enhancement for that reason.
3.
Third, and finally, Urbina argues that the District
Court was wrong to apply a two-level enhancement because Urbina
"knew or should have known that a victim of the offense was a
vulnerable victim."
USSG 3A1.1(b)(1).
A "vulnerable victim" is
Id. cmt. 2.
- 18 -
And the
only twelve years old at the time of the crime, and the details of
the crime were such that it would be reasonable to conclude that
Urbina would have been aware of the son's youth.7
B.
Finally,
Urbina
argues
briefly
that
his
360-month
that
unjustifiable.
sentence
as
long
as
his
was
Urbina
therefore
It was not.
The record
We therefore reject
- 20 -