United States v. Torres-Vazquez, 1st Cir. (2013)

United States Court of Appeals
For the First Circuit
No. 12-1903
UNITED STATES OF AMERICA,
Appellee,
v.
EDGARDO TORRES-VZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos A. Fust, U.S. District Judge]
Before
Howard, Selya and Lipez,
Circuit Judges.
Anita Hill Adames for appellant.

Carlos R. Cardona, Assistant United States Attorney, with whom
Rosa Emilia Rodrguez-Vlez, United States Attorney, and Nelson
Prez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
September 27, 2013
SELYA, Circuit Judge. This case involves a defendant who

pleaded
guilty
to
conspiracy
to
commit
promotional
money
laundering, stipulated to the amount of money laundered, and

received a within-the-range prison sentence.
His appeal seeks to
vitiate his guilty plea on grounds of factual insufficiency.
For
good measure, the appeal asserts a claim of sentencing error. After

careful consideration, we leave the defendant where we found him.
The stage is easily set.
grand
jury
sitting
in
the
On November 9, 2011, a federal
District
of
Puerto
Rico
indicted
defendant-appellant Edgardo Torres-Vzquez for his role in a money

laundering conspiracy.
The appellant initially maintained his
innocence but later entered a guilty plea to a single count of

conspiracy to launder monetary instruments in violation of 18
U.S.C. 1956(a)(1)(A)(i).
As a precursor to his change of plea, the appellant and
the government entered into a plea agreement (the Agreement) that
contained, among other things, a statement of facts, which the
appellant
vouchsafed
was
"accurate
in
every
respect."
The
Agreement also embodied a stipulation to the effect that the

appellant
was
accountable
for
the
laundering
of
more
than
$1,000,000 but less than $2,500,000.

The Agreement proposed a specific sentencing outcome. In
it, the parties concurred that the adjusted offense level under the
federal sentencing guidelines was 27 a figure that took into
-2-
account a 16-level enhancement corresponding to the stipulated

value of the laundered funds.
See USSG 2B1.1(b)(1)(I).
Treating
the appellant as a first-time offender (Criminal History Category

I), the parties suggested that a guideline sentencing range (GSR)
of 70-87 months was appropriate.
They agreed jointly to recommend
a prison sentence at the bottom of the GSR 70 months and not to

advocate for any upward or downward variances.
Finally,
provision.
the
Agreement
included
waiver-of-appeal
This provision purported to foreclose the appellant's
right to appeal as long as the district court sentenced him in

accordance with the terms of the Agreement.
On March 1, 2012, the district court convened a changeof-plea hearing.
In the course of a lengthy colloquy with the
appellant, the court read the charge and obtained the appellant's
acknowledgment that he knowingly participated in the described
activities.
In addition, the court confirmed that the appellant
had "decided to voluntarily waive [his] right to appeal" his

sentence.
The court then accepted the Agreement, took the plea,
and continued the matter pending the preparation of a presentence

investigation report (PSI Report).
On June 26, 2012, the district court held the disposition
hearing.
The
court
began
by
confirming
that
there
were
objections to the factual account limned in the PSI Report.

then
reiterated
the
key
facts
-3-
surrounding
the
no
It
appellant's
involvement in the money laundering conspiracy.
Having completed
these preliminaries and heard the appellant's allocution, the court

imposed the mutually recommended 70-month incarcerative sentence.
This timely appeal ensued.
We pause at the outset to note that the waiver-of-appeal
provision does not end our inquiry.
It is common ground that
"[w]here, as here, an appeal challenges the validity of the plea

itself, a waiver-of-appeal provision lacks force" with respect to
that challenge. United States v. Ramos-Meja, 721 F.3d 12, 14 (1st
Cir. 2013). Consequently, we proceed to consider on the merits the
appellant's entreaty that the district court erred in accepting his
guilty plea.
Our standard of review is familiar.
Because the claimed
lack of a sufficient factual foundation was not raised below, we

review the district court's acceptance of the guilty plea only for
plain error.
See United States v. Negrn-Narvez, 403 F.3d 33, 37
(1st Cir. 2005).
Thus, we will sustain the assignment of error
only if the appellant can demonstrate: "(1) that an error occurred

(2) which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
appellant cannot satisfy these requirements.
-4-
The
Federal Rule of Criminal Procedure 11(b)(3) ordains that

"[b]efore entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea."
Seizing on
this requirement, the appellant contends that the record fails to

establish
sufficient
factual
basis
to
ground
his
plea.
Specifically, he submits that the government's proffered facts

establish only that he transported money, and that transportation
simpliciter is inadequate to satisfy the statutory requirements
that a "financial transaction" be attempted and that the funds in
issue be derived from a "specified unlawful activity."
18 U.S.C.
1956(a)(1).
The record belies this contention.
To establish a
sufficient factual foundation for a plea, "the government need only

show a rational basis in fact for the defendant's guilt."
Meja, 721 F.3d at 16.
Ramos-
This showing can be achieved even if the
government does not "support every element of the charged crime by

direct evidence."
Id.
After all, "[a] Rule 11 inquiry is not
designed to prove a criminal defendant's guilt beyond all doubt."

United States v. Jiminez, 498 F.3d 82, 87 (1st Cir. 2007).
As long
as the record evinces "some basis for thinking that the defendant
is at least arguably guilty," no more is exigible.
Ramos-Meja,
721 F.3d at 16 (internal quotation marks omitted).

To support a conspiracy conviction, the government must
show "that a conspiracy existed and that a particular defendant
-5-
agreed to participate in it" with the intention of committing the

specified underlying offense.
1161, 1173 (1st Cir. 1993).
United States v. Sepulveda, 15 F.3d

Such a conspiracy may exist even if
its ultimate objective is not accomplished.
See United States v.
David, 940 F.2d 722, 735 (1st Cir. 1991).
Moreover, proof of a
defendant's involvement in a conspiracy "may consist of indirect

evidence,
including
inferences
drawn
furtherance of the conspiracy."

gleaned
either
from
the
Id.
from
acts
performed
in
The needed facts "may be
defendant's
admissions
or
from
the
prosecution's version of the evidence (to the extent that it is

acknowledged by the defendant)."
Jiminez, 498 F.3d at 86.
With this framework in place, we move from the general to

the specific.
Here, the facts proffered at the change-of-plea
hearing and acknowledged as accurate by the appellant indicate that

the appellant and a coconspirator traveled from Puerto Rico to
Panama to attend a meeting with four other persons.
One of these
individuals was operating as a confidential source (CS) for the

Drug Enforcement Administration.
which
took
place
in
September
The purpose of that meeting,

of
2010,
was
to
discuss
the
transportation of money for the purchase of drugs.

In Miami four months later, the appellant reviewed the
details
of
this
scheme
with
coconspirator
and
the
CS.
Subsequently, the appellant and a coconspirator exchanged several

telephone calls with the CS in order to coordinate the appellant's
-6-
delivery of $1,665,000 to finance the purchase of the drug load.1

On March 10 while the appellant was on his way to meet with the
CS the Puerto Rico police stopped his vehicle.
This routine
traffic stop resulted in the seizure of $1,664,044 in cash.

In the Agreement, the appellant admitted that these facts
were "accurate in every respect."
During the change-of-plea
colloquy, he also admitted both that the described events comprised

the factual basis for his guilty plea and that he knew the seized
funds were the proceeds of illicit drug trafficking.
There was more.
A claim that a guilty plea rests on an
insufficient factual basis, raised for the first time on appeal,

opens the entire record for appellate inspection.
See United
States v. Dominguez Benitez, 542 U.S. 74, 80 (2004); United States

v. Delgado-Hernndez, 420 F.3d 16, 28 (1st Cir. 2005).
case,
the
PSI
Report
summarized
the
events
In this
surrounding
the
appellant's transportation of over $1,600,000 of drug money to be

used to finance further drug purchases.
At the disposition
hearing, the court confirmed that the appellant had no objection to

the factual account contained in the PSI Report. In the absence of
such an objection, the PSI Report is itself proof of the recited
facts. See United States v. Zorrilla, 982 F.2d 28, 30-31 (1st Cir.
1992).
The record is obscure as to whether this coconspirator is

the same coconspirator with whom the appellant met in Miami. For
present purposes, it makes no difference.
-7-
We need not paint the lily.
Intent to launder money can
be proven either through the defendant's own statements or through

circumstantial evidence, or through a combination of admissions and
circumstances.
See United States v. Cruzado-Laureano, 404 F.3d
470, 483 (1st Cir. 2005).
Based upon the appellant's extensive
admissions and the circumstances surrounding his possession and

transportation of over $1,600,000 in drug-derived cash, a rational
factfinder could conclude that the appellant intended to complete
a financial transaction; that he collogued with others to this end;
that he was aware that the funds in question were the proceeds of
unlawful activities; and that those funds were to be used to
purchase drugs.
It follows inexorably that there was no error,
plain or otherwise, in the district court's acceptance of the

appellant's guilty plea.
This leaves only the appellant's claim of sentencing
error.
Refined to bare essence, this claim posits that there was
an inadequate factual basis for the 16-level sentencing enhancement

applied by the district court because the government did not prove,
piece by piece, the unlawful provenance of the predicate funds.2
While this claim of error is almost certainly foreclosed by

the waiver-of-appeal provision, see, e.g., United States v.
Chambers, 710 F.3d 23, 30 (1st Cir. 2013); United States v.
Caldern-Pacheco, 564 F.3d 55, 58 (1st Cir. 2009), the shortest
distance between two points is a straight line. With this in mind,
we think it is simpler and more direct to dispose of the claim on
the merits.
-8-
This claim is hopeless.
As we have said, the appellant
admitted in no uncertain terms both that the cash seized was

derived from illicit drug trafficking and that he knew as much. To
cinch matters, the Agreement contains a frank stipulation to this
effect. A party is normally bound by a stipulation accepted by the
district court.
See United States v. Rivera-Rodrguez, 489 F.3d
48, 59 (1st Cir. 2007).
The appellant has not identified any
plausible reason for relieving him from the stipulation that he

entered into with his eyes wide open.
Under these circumstances,
the stipulation removed any necessity for independent proof of the

stipulated facts.
See United States v. Silva, 554 F.3d 13, 23-24
(1st Cir. 2009); United States v. Serrano-Beauvaix, 400 F.3d 50, 54

(1st Cir. 2005); United States v. Meade, 175 F.3d 215, 223 (1st
Cir. 1999).
We need go no further. For the reasons elucidated above,
the conviction and sentence are affirmed.
Affirmed.
-9-

United States v. Torres-Vazquez, 1st Cir. (2013)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Torres-Vazquez, 1st Cir. (2013)

Uploaded by

Copyright:

Available Formats

United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

Anita Hill Adames for appellant.

September 27, 2013

SELYA, Circuit Judge. This case involves a defendant who

laundering, stipulated to the amount of money laundered, and

His appeal seeks to

vitiate his guilty plea on grounds of factual insufficiency.

good measure, the appeal asserts a claim of sentencing error. After

On November 9, 2011, a federal

defendant-appellant Edgardo Torres-Vzquez for his role in a money

The appellant initially maintained his

innocence but later entered a guilty plea to a single count of

Agreement also embodied a stipulation to the effect that the

$1,000,000 but less than $2,500,000.

account a 16-level enhancement corresponding to the stipulated

See USSG 2B1.1(b)(1)(I).

the appellant as a first-time offender (Criminal History Category

They agreed jointly to recommend

a prison sentence at the bottom of the GSR 70 months and not to

This provision purported to foreclose the appellant's

right to appeal as long as the district court sentenced him in

In the course of a lengthy colloquy with the

In addition, the court confirmed that the appellant

had "decided to voluntarily waive [his] right to appeal" his

The court then accepted the Agreement, took the plea,

and continued the matter pending the preparation of a presentence

objections to the factual account limned in the PSI Report.

involvement in the money laundering conspiracy.

these preliminaries and heard the appellant's allocution, the court

It is common ground that

"[w]here, as here, an appeal challenges the validity of the plea

Because the claimed

lack of a sufficient factual foundation was not raised below, we

See United States v. Negrn-Narvez, 403 F.3d 33, 37

(1st Cir. 2005).

Thus, we will sustain the assignment of error

only if the appellant can demonstrate: "(1) that an error occurred

Federal Rule of Criminal Procedure 11(b)(3) ordains that

this requirement, the appellant contends that the record fails to

Specifically, he submits that the government's proffered facts

sufficient factual foundation for a plea, "the government need only

This showing can be achieved even if the

government does not "support every element of the charged crime by

After all, "[a] Rule 11 inquiry is not

designed to prove a criminal defendant's guilt beyond all doubt."

721 F.3d at 16 (internal quotation marks omitted).

agreed to participate in it" with the intention of committing the

United States v. Sepulveda, 15 F.3d

its ultimate objective is not accomplished.

See United States v.

David, 940 F.2d 722, 735 (1st Cir. 1991).

defendant's involvement in a conspiracy "may consist of indirect

furtherance of the conspiracy."

The needed facts "may be

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

Jiminez, 498 F.3d at 86.

With this framework in place, we move from the general to

Here, the facts proffered at the change-of-plea

hearing and acknowledged as accurate by the appellant indicate that

individuals was operating as a confidential source (CS) for the

The purpose of that meeting,