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United States v. Torres-Gonzalez, 1st Cir. (1994)
United States v. Torres-Gonzalez, 1st Cir. (1994)
August 4, 1994
No. 94-1037
UNITED STATES,
Appellee,
v.
RAMON TORRES-GONZALEZ, a/k/a REY, a/k/a EL LOCO, a/k/a JORGE
SANTANA, a/k/a NELSON VARGAS,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
___________________
___________________
Before
Torruella, Selya and Cyr,
Circuit Judges.
______________
___________________
Ramon Torres-Gonzalez on brief pro se.
_____________________
Jo Ann Harris, Assistant Attorney General, Geoffrey R.
_______________
____________
Greiveldinger, Acting Chief, and Hope P. McGowan, Trial Attorney,
_____________
_______________
U.S. Department of Justice, on brief for appellee.
__________________
__________________
Per Curiam.
__________
P. 35(a), as well as
from
We
affirm.
I.
The following facts are undisputed.
named
in
twenty-four
indictment returned
charged
him
distribute
with
over
of
on November
conspiracy
five
kilograms of marijuana,
U.S.C.
counts
1,
to
kilograms
Torres-Gonzales was
twenty-seven
1990.
The
possess
with
of
cocaine,
count
indictment
intent
one
to
hundred
of heroin, see
___
21
applications, see 18
___
U.S.C.
1542;
importing four
hundred
U.S.C.
intent
to
kilograms
2;
with
distribute
the
four
2; possessing with
hundred
and
seventy-five
failing to file
reporting forms
cash transactions
involving $100,000
U.S.C.
2;
in United
848.
government.
with the
The
preliminary agreement
government provided
that he
he
was not
1991,
a statement.
then-prosecutor
Sometime in
De Jesus
January or
informed
defense
term
cooperation.
When
statement to
for
of
defense
the attention
the government,
would
not
imprisonment
make
Gil
such
January
31,
1992,
counsel
on
later
appellant's
brought
of prosecutor Gil,
informed him
based
lead counsel
that the
recommendation.
government
By
that
Torres-Gonzalez
entered
this
time,
case.
into
On
plea
counts
imprisonment.
and
The
to
recommend
district
court
eighteen
years'
subsequently
accepted
him
R. Crim. P.
"offer" to
to correct
35(a), based on
recommend fifteen
years'
exercise its
-3-
On August
On October
unconstitutionally coerced.
district court
On
December 2,
1993, the
reconsideration.
This
appeal followed.
II.
On appeal, Torres-Gonzalez advances an argument based on
contract principles.
He concedes that,
been approved by
467 U.S.
See
___
However,
Mabry v.
_____
he argues
rule,
Papaleo,
_______
as a general
upon
agreements are
government
governed by
promise and
stating
contract principles).
that
plea
Although
appellant appears
to contend
promised
lenient
him
cooperation
a
and
later
fifteen-year sentence
argues that
that the
sentence
agreed
to
entirely clear,
government initially
in
exchange
recommend
his
"lenient,"
for
He further
recommend a lenient
-4-
sentence
making
induced him
a
to
statement
Consequently,
performance by
he
cooperate with
and
argues,
by
he
the government
surrendering
is
entitled
by
property.
to
specific
"promise" to recommend
the
whether we
outset,
we
observe that
filed on
August
The
12, 1993.
4(b).
Appellant's
notice of
is
Appellant's
was denied
for appealing
is ten days.
appeal
questionable
appeal.
August 6, 1993,
time period
it
from the
Fed. R.
was not
on
filed
App. P.
until
Although a
for
period and
reconsideration
was
was
filed
therefore untimely.
70 (1st Cir.),
beyond the
See
___
ten-day
United States
_____________
v.
Ct.
112 (1991); United States v. Russo, 760 F.2d 1229, 1230 (11th
_____________
_____
Cir. 1985).
not
and
this court
apparently without
is also
-5-
review
the
district
reconsideration.
court's
denial
of
the
motion
for
Arguably, appellant's
October 25 motion
advances a new
motion or as a timely
as a
first motion
U.S.C.
2255.2
Cf.
___
United States
_____________
v.
Zuleta-Molina, 840
_____________
F.2d 157, 158 (1st Cir. 1988) (observing that the merits of a
federal pro se prisoner's claims need not be circumscribed by
___ __
the
label attached
without deciding
to
that we
his pleadings).
However,
assuming
the appeal
faces a
different
hurdle.
The detrimental
reliance argument
appellant
advances
on
not
appeal
was
presented
to
that
the
____________________
1. In light of our determination that appellant does not
have a timely appeal from the denial of his August 6 motion,
we need not address whether Rule 35(a) was an appropriate
vehicle for this motion, or, relatedly, whether the motion
was timely filed.
2. Under the version of Rule 35(a) applicable to preSentencing Guideline cases, the court "may correct an illegal
sentence at any time." The government questions whether this
rule is a source of authority to provide relief from a
sentence allegedly imposed
after an
unconstitutionally
coerced plea agreement. We need not decide whether such a
sentence is an "illegal sentence" within the meaning of
former Rule 35(a) because, as noted above, the motion could
also be construed as a collateral attack on appellant's
conviction, which also may be brought at any time.
Cf.
___
United States v. Flenory, 876 F.2d 10, 11 (3d Cir. 1989)
______________
_______
(declining to decide whether Rule 35(a) is a source of
authority to afford relief from breach of a plea agreement
where the Rule 35(a) motion could be construed as a
2255
motion).
-6-
district
court,
Sandstrom
_________
and hence
is
deemed waived.
See, e.g.,
___ ____
add
that, in
any
support whatsoever
the
Even
we would
government
breached this
raised on
that there is
appellant's claim
promised
to assume that
been made,
eighteen-year
record for
initially
were we
arguments
We observe, first,
in the
prosecution
sentence.
event, the
him
such a promise
sentence instead
when it
of a
lenient
had
that the
recommended an
fifteen-year sentence.
although it
1991,
willingness,
incarceration,
is undisputed
then-prosecutor
is
by
no
De
that in
Jesus
to recommend
means
January or
stated
his
fifteen years'
clear that
De
Jesus'
See
___
Santoni
(an
v. FDIC,
677
F.2d 174,
179
(1st Cir.
1982)
_______
estoppel
____
claim must be
promise).
Assuming,
detrimental
reliance
version
supported by a
arguendo, that
________
argument
admission
and
of
appellant
claims
was
induced
completed
before
any
specific
still
events,
appellant's
fails.
the
by De
did,
his
cooperation
Jesus'
number of
By
"offer,"
years
was
own
which
was
ever
-7-
mentioned.
Under the
appellant
relied upon
term of incarceration.
Affirmed.
________
circumstances, it cannot be
any promise
to recommend
said that
a specific
-8-