United States v. Luis Plaza-Garcia, 914 F.2d 345 (1st Cir. 1990). · Go Syfert
United States v. Luis Plaza-Garcia, 914 F.2d 345 (1st Cir. 1990). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases, last quoted 2005 · …may well have been influenced by the erroneous sentencing recommendation. at p. 347 ≈ altered Topic ↗
cited 3× by 3 distinct cases, last quoted 1993 · …specifically incorporates the factor of age,
53 citation events (15 in the last 25 years) across 11 distinct courts.
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Perry
D.R.I. · 2005 · confidence medium
Cf. United States v. Leavitt, 925 F.2d 516, 517 (1st Cir.1991) (taking notice of errors not called to attention of district court, stating that "the Guidelines still are relatively new; and [the First Circuit] has said that for that reason, at least for a time, it will tend to overlook a failure to make a Guideline-related argument in the court below”) (citing United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir.1990) ("relative novelty of the guidelines makes an unnoticed mistake understandable”)). 8 .
discussed Cited as authority (rule) United States v. Gonzalez-Huerta (2×)
10th Cir. · 2005 · confidence medium
We have determined this to constitute plain error.”); United States v. Martinez-Rios, 143 F.3d 662, 675-76 (2d Cir.1998) (concluding that, although it was unclear whether correcting error would have any effect on sentencing level, remand was required under plain error analysis); United States v. Ford, 88 F.3d 1350, 1356 (4th Cir.1996) (holding that where district court miscalculated criminal history points “[t]he error clearly affected [defendant’s] substantial rights because the extra points caused [defendant] to be sentenced at a more severe guideline range”); United States v. Cabral…
discussed Cited as authority (rule) United States v. Paladino, Robert D.
7th Cir. · 2005 · confidence medium
For instance, we have remanded sentences that fell in the overlap of an erroneously applied sentencing range and the correct guidelines range, “ ‘unless we have reason to believe that the error did not affect the district court’s selection of a particular sentence.’ ” Emezuo v. United States, 357 F.3d 703, 711 (7th Cir. 2004) (quoting United States v. Wallace, 32 F.3d 1171 (7th Cir. 1994)); see United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (relaxing the other- wise rigorous plain error review standards to correct unob- jected error because the error related to sentencing …
discussed Cited as authority (rule) United States v. Paladino, Robert D. (2×)
7th Cir. · 2005 · confidence medium
Nos. 03-2296, 03-2383–03-2386, 04-1951, 04-2339, 04-2378 25 v. United States, 357 F.3d 703, 711 (7th Cir. 2004) (quoting United States v. Wallace, 32 F.3d 1171 (7th Cir. 1994); see United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (relaxing the otherwise rigorous plain error review standards to correct unobjected error because the error related to sentencing and the defendant lacked prior knowledge that the erroneous sentencing condition would be imposed); United States v. Plaza- Garcia, 914 F.2d 345, 347-48 (1st Cir. 1990) (vacating sentence under the plain error doctrine that fell …
discussed Cited as authority (rule) United States v. Robert D. Paladino, United States of America v. Randy Velleff, United States of America v. John Peyton, United States of America v. Darrell Turner
7th Cir. · 2005 · confidence medium
For instance, we have remanded sentences that fell in the overlap of an erroneously applied sentencing range and the correct guidelines range, "`unless we have reason to believe that the error did not affect the district court's selection of a particular sentence.'" Emezuo v. United States, 357 F.3d 703, 711 (7th Cir.2004) (quoting United States v. Wallace, 32 F.3d 1171 (7th Cir.1994)); see United States v. Sofsky, 287 F.3d 122, 125 (2d Cir.2002) (relaxing the otherwise rigorous plain error review standards to correct unobjected error because the error related to sentencing and the defendant l…
discussed Cited as authority (rule) United States v. Yervin K. Barnett (2×)
6th Cir. · 2005 · confidence medium
For example, in United States v. Plaza-Garcia, 914 F.2d 345, 347-48 (1st Cir.1990), then-Chief Judge Stephen Breyer vacated a sentence that fell within both erroneously applied and correct Guideline ranges under the plain error doctrine because the sentence “may well have been influenced by the [erroneous] sentencing recommendation.” See also United States v. Syme, 276 F.3d 131, 153-55 (3d Cir.2002) (holding that even though a constructive amendment to an indictment does not constitute a “structural” error, it nevertheless must be “presumed prejudicial” in light of the difficulty o…
discussed Cited as authority (rule) United States v. Barnett
6th Cir. · 2005 · confidence medium
For example, in United States v. Plaza-Garcia, 914 F.2d 345, 347-48 (1st Cir. 1990), then-Chief Judge Stephen Breyer vacated a sentence that fell within both erroneously applied and correct Guideline ranges under the plain error doctrine because the sentence “may well have been influenced by the [erroneous] sentencing recommendation.” See also United States v. Syme, 276 F.3d 131, 153-55 (3d Cir. 2002) (holding that even though a constructive amendment to an indictment does not constitute a “structural” error, it nevertheless must be “presumed prejudicial” in light of the difficulty…
discussed Cited as authority (rule) United States v. Rangi Knight
3rd Cir. · 2001 · confidence medium
United States v. Lavoie, 19 F.3d 1102, 1104 (6th Cir.1994), See also, e.g., United States v. Plaza-Garcia, 914 F.2d 345, 347-48 (1st Cir.1990) (remanding sentence within both erroneously applied and correct Guideline ranges under plain error doctrine, because sentence “may well have been influenced by the [erroneous] sentencing recommendation”); United States v. Martinez-Rios, 143 F.3d 662 (2d Cir.1998) (although it was unclear whether correcting error would have any effect on sentencing level, remand was required under plain error analysis); 10 United States v. Ford, 88 F.3d 1350, 1356 (4…
discussed Cited as authority (rule) Ryan v. United States
D. Mass. · 2000 · confidence medium
As the First Circuit has held, an error in applying the guidelines may “prove harmless [where] the district court might clearly indicate that the applicable guideline sentencing range had nothing to do with the sentence actually imposed.” United States v. Plaza-Garcia, 914 F.2d 345, 347 (1st Cir.1990).
discussed Cited as authority (rule) United States v. Footman
D. Mass. · 1999 · confidence medium
In United States v. Plaza-Garcia, 914 F.2d 345, 347 (1st Cir.1990), the First Circuit reversed a district court's U.S.S.G. § 3A1.1 enhancement of a sentence under U.S.S.G. § 2G2.1 (sexual exploitation of a minor).
discussed Cited as authority (rule) United States v. Chaston Cross (96-5218) Perry Thomas (96-5219) (2×) also: Cited "see"
6th Cir. · 1997 · confidence medium
This also distinguishes this case from United States v. Plaza-Garcia, 914 F.2d 345, 346-48 (1st Cir.1990), in which then-Chief-Judge Breyer suggested that the district court had erred in departing upwards to bring a defendant's sentence to the same level it would have been had no charges been dismissed per the plea agreement.
discussed Cited as authority (rule) United States v. Horace Joseph Big Medicine
10th Cir. · 1995 · confidence medium
The background section of the commentary to § 2A3.4 states that “[t]he enhancement under subsection (b)(2) does not apply, however, where the base offense level is determined under subsection (a)(3) because an element of the offense to which that offense level applies is that the victim had attained the age of twelve years but had not attained the age of sixteen years.” Cf. United States v. Plaza-Garcia, 914 F.2d 345, 347 (1st Cir.1990) (“Guideline § 3A1.1 provides for a two-level increase if the victim is ‘unusually vulnerable due to age;’ but it also states that no increase is wa…
discussed Cited as authority (rule) United States v. Dennis Felton
3rd Cir. · 1995 · confidence medium
This circuit' and others have found that the miscalculation of a defendant’s offense level "certainly is error that seriously affect[s] [the defendant's] rights, and so amounts to plain error.” Id. at 90; United States v. Moss, 9 F.3d 543, 553 (6th Cir.1993) (application of clearly incorrect base level offense deemed clear error); United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir.1990).
discussed Cited as authority (rule) United States v. Felton
3rd Cir. · 1995 · confidence medium
This circuit and others have found that the miscalculation of a defendant's offense level "certainly is error that seriously affect[s] [the defendant's] rights, and so amounts to plain error." Id. at 90; United States v. Moss, 9 F.3d 543, 553 (6th Cir. 1993) (application of clearly incorrect base level offense deemed clear error); United States v. Plaza-Garza, 914 F.2d 345, 348 (1st Cir. 1990).
discussed Cited as authority (rule) United States v. Philip Scott Ashburn (2×)
5th Cir. · 1994 · confidence medium
United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir.1990); Cf. United States v. Greener, 979 F.2d 517, 521 (7th Cir.1992) (upholding a district court’s rejection of a plea bargain because it did not adequately reflect the defendant’s. actual offense conduct).
cited Cited as authority (rule) United States v. Robert F. Carrozza, United States of America v. Raymond J. Patriarca, United States of America v. Raymond J. Patriarca
1st Cir. · 1993 · confidence medium
United States v. Plaza-Garcia, 914 F.2d 345, 347 (1st Cir.1990).
cited Cited as authority (rule) United States v. Carrozza
1st Cir. · 1993 · confidence medium
United States v. Plaza-Garcia, 914 F.2d 345, 347 (1st Cir. 1990).
cited Cited as authority (rule) United States v. Carrozza
1st Cir. · 1993 · confidence medium
United States v. Plaza-Garcia, _____________ ____________ 914 F.2d 345, 347 (1st Cir. 1990).
discussed Cited as authority (rule) United States v. Jason J. Greener
7th Cir. · 1992 · confidence medium
See United States v. Castro-Cervantes, 927 F.2d 1079, 1082 (9th Cir.1990) (plain implication of U.S.S.G. § 6B1.2(a) is that the sentencing court should not accept a plea agreement that does not adequately reflect the seriousness of defendant’s behavior); United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir.1990) (court should consider U.S.S.G. § 6B1.2(a) and accept a plea agreement only when it believes it reflects the defendant’s conduct); United States v. Enquist, 745 F.Supp. 541, 543 (N.D.Ind.1990) (district court did not reject a plea agreement for insufficiently reflecting the …
cited Cited as authority (rule) United States v. Kathleen Citro, A/K/A K.C., United States of America v. Steven Alonzo, United States of America v. Janice Lodato, A/K/A Janet Germana
1st Cir. · 1991 · confidence medium
United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir.1990).
discussed Cited as authority (rule) United States v. Diane Sabatino, United States of America v. Joseph Sabatino
1st Cir. · 1991 · confidence medium
Under § 3A1.1, a sentencing court is directed to increase the BOL by two levels if “the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly vulnerable to the criminal conduct.” Under § 2G1.1, the sentencing court is directed to raise the BOL by four levels if the offense “involved the use of physical force, or coercion by threats or drugs or in any manner.” See United States v. Plaza-Garcia, 914 F.2d 345, 347 (1st Cir.1990).
cited Cited "see" United States v. Cruzado-Laureano
1st Cir. · 2006 · signal: see · confidence high
See United States v. Plaza-Garcia, 914 F.2d 345, 347 (1st Cir.1990); 18 U.S.C. § 3742 (f)(1) (requiring that incorrectly calculated sentences be remanded).
discussed Cited "see" United States v. William Pollen
3rd Cir. · 1992 · signal: accord · confidence high
Accord United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir. 1990) (finding plain error where government conceded on appeal that Sentencing Guideline calculations were erroneous).
cited Cited "see" United States v. Jesus Castro-Cervantes
9th Cir. · 1991 · signal: see · confidence high
See United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir.1990) (per Breyer, C.J.).
discussed Cited "see" United States v. Tony Allen Leavitt (2×)
1st Cir. · 1991 · signal: see · confidence high
See United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir.1990) (“relative novelty of the guidelines makes an unnoticed mistake understandable”).
discussed Cited "see, e.g." United States v. Vladimir Rodriguez (2×)
11th Cir. · 2005 · signal: see, e.g. · confidence medium
See, e.g., United States v. Plaza-Garcia, 914 F.2d 345, 347-48 (1st Cir.1990) (Breyer, C.J.) (vacating and remanding an illegal sentence also falling within the correct guidelines range under the plain-error doctrine because it "may well have been influenced by the [erroneous] sentencing recommendation"); United States v. Reyna, 358 F.3d 344, 351-52 (5th Cir.) ( en banc ), cert. denied, 541 U.S. 1065 , 124 S.Ct. 2390 , 158 L.Ed.2d 966 (2004) (presuming that denial of defendant's right to allocution caused prejudice, because of the nature of the right and the difficulty of proving the violation…
discussed Cited "see, e.g." United States v. Knight
3rd Cir. · 2001 · signal: see also · confidence medium
See also, e.g., United States v. Plaza-Garcia, 914 F.2d 345, 347-48 (1st Cir. 1990) (remanding sentence within both erroneously applied and correct Guideline ranges under plain error doctrine, because sentence "may well have been influenced by the [erroneous] sentencing recommendation"); United States v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998) (although it was unclear whether correcting error would have any effect on sentencing level, remand was required under plain error analysis);10United States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996) (holding, where court miscalculated criminal histo…
discussed Cited "see, e.g." United States v. Zapata-Medina
1st Cir. · 1993 · signal: see also · confidence low
See, e.g., U.S.S.G. 3A1.1, ___ ____ comment. (n.2) (discussing vulnerability of victim), 3A1.3, comment. (n.2) (discussing restraint of victim), 3B1.3 (discussing abuse of special trust), 3C1.1, comment. (n.6) (discussing obstruction of justice); see also United States v. ___ ____ ______________ Plaza-Garcia, 914 F.2d 345 (1st Cir. 1990) (applying 3A1.1, ____________ comment. (n.2)).
discussed Cited "see, e.g." United States v. Evester Gordon (2×)
8th Cir. · 1992 · signal: see also · confidence medium
See Onwuemene, 933 F.2d at 652 ; United States v. McConnell, 903 F.2d 566, 572 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1393 , 113 L.Ed.2d 449 (1991); see also United States v. Plaza-Garcia, 914 F.2d 345, 347-48 (1st Cir.1990).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Luis PLAZA-GARCIA, Defendant, Appellant
89-1763.
Court of Appeals for the First Circuit.
Sep 20, 1990.
914 F.2d 345
Stephen J. Weymouth, Boston, Mass., for defendant, appellant., Jose R. Gaztambide, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.
Breyer, Coffin, Campbell.
Cited by 43 opinions  |  Published
BREYER, Chief Judge.

Luis Plaza Garcia appeals from a 97-month prison sentence imposed by the district court following his plea of guilty to a single count of sexually exploiting a minor. 18 U.S.C. § 2251(a). The following facts are relevant to the disposition of this appeal:

(1) The indictment charged Plaza Garcia with ten counts of sexually exploiting, a minor (one count for each of ten minors he photographed), 18 U.S.C. § 2551(a), one count of shipping child pornography in interstate commerce, id. § 2252(a)(1), and one count of receiving child pornography in interstate commerce, id. § 2252(a)(2).
(2) In a plea agreement accepted by the court, see Fed.R.Crim.P. 11(e), Plaza Garcia pleaded guilty to one sexual exploitation offense and the government dropped the remaining eleven charges.
(3) The Probation Officer prepared a pre-sentence investigation report (“PSI”) that contained a recommended sentence based on the Federal Sentencing Guidelines. See 18 U.S.C. § 3552(b). The report stated, among other things,
(a) that the “base offense level” for sexual exploitation of a minor is level 25. United States Sentencing Commission, Guidelines Manual, § 2G2.1(a) (Nov.1989) [hereinafter “U.S.S.G.”];
(b) that the defendant deserved a two-level reduction for “acceptance of responsibility.” U.S.S.G. § 3El.l(a);
(c) that the defendant deserved a two-level increase because the victim’s young age made him “unusually vulnerable.” U.S.S.G. § 3A1.1.
(d) that the resulting offense level, level 25, combined with defendant’s “criminal history category,” Category I, yielded a sentencing range of 57 to 71 months imprisonment. U.S.S.G. Ch. 5, Pt. A (sentencing table).
(e) that “if the defendant had been convicted on any of the remaining counts, the adjusted offense level would have increased to 30. Hence,[*347] the new guideline imprisonment range would have been from 97 to 121 months as opposed to the 57 to 71 months he is exposed to for having pleaded guilty to” only one count.
(f) that “an upward departure from the established guideline imprisonment range [to 97 months] should be considered.”
(4) The PSI was reviewed by the defendant, the defense attorney, and the prosecutor prior to sentencing. No one raised any objection to it in court.
(5) At the sentencing hearing, the court said that the “total offense level was 25” producing a “guideline imprisonment range” of “57 to 71 months,” that the “defendant’s guilty plea to one count ... does not take into account his constant and deep involvement in the exploitation of ten minors by means of photographs,” and that an “upward departure to a guideline range of 97 months was [therefore] warranted.” The court sentenced Plaza Garcia to 97 months imprisonment.

The government concedes that the PSI’s sentencing calculations contain at least two mistakes. The first mistake consisted of the PSI’s two-level increase based on the victim's age. Guideline § 3A1.1 provides for a two-level increase if the victim is “unusually vulnerable due to age;” but it also states that no increase is warranted if “the offense guideline specifically incorporates this factor.” See U.S.S.G. § 3A1.1, comment, (n. 2). Obviously, the guideline for “Sexual Exploitation of a Minor” specifically incorporates the factor of age. In addition, the guideline provides for a level increase of two if the minor victim is under the age of 12. To increase that guideline’s base offense level of 25 by two levels because the victim is a minor (over 12 years old) would be to “double count.” If this erroneous two-level increase had not been made, the base offense level of 25, after being reduced by two levels for “acceptance of responsibility,” U.S.S.G. § 3El.l(a), would have become an adjusted offense level of 23, producing a sentencing range of 46 to 57 months imprisonment. See U.S.S.G. Ch. 5, Pt. A (sentencing table).

The PSI’s second mistake was the statement that if the defendant had been convicted “on any of the remaining counts,” his offense level would have increased to 30, yielding a sentencing range of 97 to 121 months. In fact, had the defendant been convicted on, say, only one of the remaining “sexual exploitation” counts, his offense level would have increased only two levels, not five, from a correctly calculated level 23 to level 25. See § 3D1.4 (five-level increase appropriate in sexual exploitation case only if five or more minors were victimized). Even if the defendant had been convicted on all the remaining “sexual exploitation” counts, his offense level would have increased only five levels, from a correctly calculated level 23 to level 28, producing a guideline sentencing range of 78 to 97 months, not, as the PSI indicated, a range of 97 to 121 months. See U.S.S.G. Ch. 5, Pt. A (sentencing table).

We believe that these errors require resentencing. See 18 U.S.C. § 3742(f)(1) (incorrectly calculated sentences must be remanded for resentenc-ing). We concede that where, as here, the district court departs from the sentencing guidelines, an error in applying the guidelines may sometimes prove harmless; for example, the district court might clearly indicate that the applicable guideline sentencing range had nothing to do with the sentence actually imposed. Cf. United States v. Diaz-Villafane, 874 F.2d 43, 48 n. 4 (1st Cir.1989) (when a court departs from the guidelines, “[i]t is ... arguable that any computational error in assigning a total offense level [is] harmless”) (dicta). But see United States v. Roberson, 872 F.2d 597, 608 (5th Cir.1989) (“[W]hether the court incorrectly determined the recommended range is relevant to our review of a [departure for a] ... sentence that exceeds the Guidelines may look reasonable when compared to one recommended range, but unreasonable when compared to another”). We cannot say the error is harmless here, however, because the court’s decision to impose a 97-month “departure” sentence may well have been influenced by the PSI’s sentencing recommendation, which itself may well have reflected either or both of the mistakes we[*348] have just described. We also concede that we normally do not take notice of errors that were not called to the attention of the district court. In light of the government’s candid acknowledgment that the sentencing calculations were erroneous, however, and the fact that the relative novelty of the guidelines makes an unnoticed mistake understandable, we consider the error here to be “plain.” See United States v. Aponte-Suarez, 905 F.2d 483, 496 n. 9 (1st Cir.1990); United States v. Manuel De La Cruz, 902 F.2d 121, 122 (1st Cir.1990).

Finally, we call to the court’s attention for consideration on remand a guidelines “policy statement” in respect to plea agreements. It says,

In the case of a plea agreement that includes the dismissal of any charges ... the court may accept the agreement if the court determines ... that the remaining charges adequately reflect the seriousness of the actual offense behavior ....

U.S.S.G. § 6B1.2(a) (policy statement) (emphasis added). The court seems to have departed from the guidelines so that defendant’s sentence would reflect the conduct charged in the remaining eleven counts of the indictment (counts that were dismissed in exchange for his guilty plea). But if the court believed that defendant’s punishment should reflect that conduct, why did it accept the plea bargain in the first place? See Fed.R.Crim.P. 11(e)(2) (court may accept or reject a plea agreement).

We are not suggesting that a district court cannot depart on the basis of related conduct that was the subject of dropped charges. See United States v. Kim, 896 F.2d 678, 681-84 (2d Cir.1990). After all, in some instances {e.g., in many cases involving drugs or fraud), the guidelines are constructed so that the applicable sentence remains the same even if some charges are dropped. See, e.g., United States v. Blanco, 888 F.2d 907, 909-10 (1st Cir.1989); United States v. White, 888 F.2d 490, 496-98 (7th Cir.1989). In other instances, a court might discover, perhaps in the pre-sentence report, information about the nature of “dropped charge” conduct that was not available to the court at the time it accepted the plea. Or the court might find some other legitimate reason not to follow the Commission’s “policy statement” respecting plea agreements. See 18 U.S.C. § 3553(a)(5) (stating only that a court “shall consider ... any pertinent policy statement issued by the Sentencing Commission”). Regardless of a court’s reasons for departing, however, it must state those reasons in open court, see 18 U.S.C. § 3553(c)(2), and we must review the departure for reasonableness, see id. § 3742(e)(3). We believe the question we have posed should be considered by the district court when it decides whether to depart and when it sets forth its reasons for departing.

Vacated and remanded for resentenc-ing.