United States v. Rivera-Cruz, No. 16-2398 (1st Cir. 2017)

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Police officers were searching a mall for a motorcyclist who had violated traffic laws when they were spotted by Rivera-Cruz, who ran, yelling “police!” into a walkie-talkie. The officers recovered a loaded revolver with an obliterated serial number from a fanny pack that Rivera-Cruz had tossed onto the ground during his flight. On the eve of trial, Rivera-Cruz pleaded guilty to being a felon in possession of a firearm. The Sentencing Guidelines calculations in his plea agreement included a three-level reduction in offense level for acceptance of responsibility. The plea agreement permitted Rivera-Cruz to argue for a sentence of 96 months, and the government to argue for a statutory-maximum sentence of 120 months. The Guidelines calculations in the presentence investigation report also contained a three-level reduction for acceptance for responsibility. Unlike the plea agreement, the PSR contained a four-level enhancement because the gun had an obliterated serial number. The resulting Guidelines sentencing range in the PSR was 110-137 months. The district court adopted the PSR’s calculations, and sentenced Rivera-Cruz to 120 months in prison. The First Circuit affirmed, rejecting Rivera-Cruz’s argument that the plea agreement was invalid because it lacked consideration. As such, he argues that he should be entitled to withdraw his plea.

United-States-v.-Rivera-Cruz-No.-16-2398-1st-Cir.-2017Download

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