United States v. Marte-De La Cruz

United States Court of Appeals For the First Circuit No. 16-2152 UNITED STATES OF AMERICA, Appellee, v. SANTOS MARTE-DE LA CRUZ, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge] Before Torruella, Thompson, and Kayatta, Circuit Judges. Robert Herrick and Nicholson Herrick LLP, on brief for appellant. Mainon A. Schwartz, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee. December 4, 2017 KAYATTA, Circuit Judge. Pursuant to a plea agreement, Santos Marte-de la Cruz pled guilty to attempted illegal reentry into the United States following removal subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). He was sentenced to thirty-three months' imprisonment. He now appeals his conviction and sentence on the basis that his prior conviction was not an aggravated felony or crime of violence. Because Marte-de la Cruz waived his right to appeal as part of his plea agreement, we dismiss his appeal. I. Background We draw the facts from the parties' agreed-upon statement, attached to the plea agreement. In January 2016, a United States Coast Guard patrol intercepted a vessel travelling toward Puerto Rico. Marte-de la Cruz was on board. He identified himself as a Dominican Republic national and presented no documentation that would permit him to enter the United States or remain therein. The authorities subsequently learned that in 2010, Marte-de la Cruz had been charged with robbery in the Superior Court of San Juan, Puerto Rico, and sentenced to five years' imprisonment. Subsequent to that conviction, he was served with an order of removal and on September 24, 2014, he was removed from the United States. On January 13, 2016, a criminal complaint issued against Marte-de la Cruz. The same day, counsel was appointed to represent - 2 - him. On May 2, 2016, following Marte-de la Cruz's waiver of his right to an indictment, the United States filed a criminal information, charging Marte-de la Cruz with violating 8 U.S.C. § 1326(b)(2), which criminalizes re-entry or attempted re-entry into the United States by an individual who was previously removed following a conviction for an aggravated felony. The same day, Marte-de la Cruz filed a plea agreement. The plea agreement contained the following provisions: First, Marte-de la Cruz agreed to plead guilty to one count of attempted illegal reentry following removal subsequent to a conviction for an aggravated felony, in violation of section 1326(b)(2). Second, the parties agreed to recommend that Marte-de la Cruz's total offense level be set at nineteen. They arrived at this figure by starting with a base offense level of eight, adding sixteen levels for the fact that Marte-de la Cruz had been previously removed following a conviction for a crime of violence, and subtracting three levels for acceptance of responsibility and two more levels for participation in a fast- track plea program. Third, Marte-de la Cruz agreed ...

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