Sotirion v. United States

United States Court of Appeals
For the First Circuit

No. 08-2566

ARTHUR SOTIRION,
Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lipez, Circuit Judge,
Souter, Associate Justice,*
and Howard, Circuit Judge.

Thomas J. Butters, with whom Matthew D. Thompson and Butters
Brazilian LLP were on brief, for appellant.
Steven H. Breslow, Assistant United States Attorney, with whom
Michael K. Loucks, Acting United States Attorney was on brief, for
appellee.

August 4, 2010

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 LIPEZ, Circuit Judge. Arthur Sotirion pled guilty to

racketeering and tax offenses pursuant to a plea agreement that

contained a waiver of his right to directly appeal and collaterally

attack his conviction or sentence. He appeals from the district

court's dismissal of his 28 U.S.C. § 2255 petition to vacate, set

aside or correct his sentence, in which he claimed that the

district court erred in calculating his advisory sentencing

guidelines range. He contends that the appellate waiver2 in his

plea agreement is invalid because the court failed to specifically

apprise him of the waiver at his change-of-plea hearing as required

by Federal Rule of Criminal Procedure 11(b)(1)(N), and therefore

the waiver was not knowing and voluntary. He further contends that

the waiver should not be enforced because such enforcement would

constitute a miscarriage of justice. The government responds that

Sotirion procedurally defaulted his challenge to the appellate

waiver by not first raising it on direct appeal, and alternatively

contends that Sotirion's appellate waiver is valid and enforceable.

Rejecting the government's procedural default argument,

we nevertheless conclude that Sotirion has not demonstrated that

his appellate waiver is invalid on the basis of a plain error

challenge to the district court's compliance with Rule 11(b)(1)(N).

We further conclude that despite the failure of this plain error

2
We use the term "appellate waiver" to encompass the
provision's waiver of both the right to bring a collateral
challenge and the right to file a direct appeal.

-2-
challenge to the Rule 11 procedure, we retain the discretion to

refuse to enforce the appellate waiver if such enforcement would

work a miscarriage of justice, see United States v. Teeter, 257

F.3d 14, 25-26 (1st Cir. 2001). However, Sotirion has not

demonstrated that enforcement of the waiver would result in a

miscarriage of justice in this case. Accordingly, we affirm.

I.

Because Sotirion's conviction and sentence followed the

entry of a guilty plea, we draw the facts from the change-of-plea

colloquy and the uncontested portions of the revised presentence

investigation report. See United States v. Jimenez, 512 F.3d 1, 2

(1st Cir. 2007).

Sotirion began working at the Springfield Housing

Authority (SHA) in 1970 and served as the Assistant Executive

Director of Operations for many years until his resignation in

April 2003. In that position, he oversaw the operation and

maintenance of SHA housing projects and played a critical role in

the awarding of contracts. Together with Raymond Asselin, Sr., the

Executive Director of the SHA, Sotirion orchestrated a massive

scheme of bribery, embezzlement, and fraud. As of 1993, Sotirion

and Asselin began to solicit and receive bribes from SHA

contractors in exchange for awarding them contracts and other

preferential treatment at SHA. Sotirion also embezzled money

directly from SHA. Sotirion orchestrated this conspiracy over a

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ten-year period, managing at least a dozen corrupt contractors and

SHA employees. In addition, he did not report the income received

from these schemes on his federal income tax returns.

In January 2005, a grand jury returned a superseding

indictment against Sotirion and twelve co-defendants, charging

Sotirion with ninety-eight counts related to the corrupt operation

of the SHA from 1988 until April 2003. Sotirion was charged with

multiple counts of racketeering and conspiracy to commit

racketeering, 18 U.S.C. § 1962(c),(d); bribery and conspiracy to

commit bribery, 18 U.S.C. §§ 201, 371; conspiracy to commit theft

against the government, 18 U.S.C. §§ 371, 641; mail and wire fraud

and conspiracy to commit mail and wire fraud, 18 U.S.C. §§ 371,

1341, 1343, 1346; extortion, 18 U.S.C. § 1512; witness tampering,

18 U.S.C. § 1512; and filing false income tax returns, 26 U.S.C. §

7206(1).

Pursuant to a negotiated plea agreement, Sotirion pled

guilty to three counts3 and the government agreed to dismiss the

remaining ninety-five counts against him. The plea agreement also

substantially limited Sotirion's forfeiture and restitution

obligations. The government agreed that all of Sotirion's

forfeiture obligations would be discharged by Sotirion's forfeiture

3
Sotirion pled guilty to one count of racketeering, 18 U.S.C.
§ 1962(c), one count of conspiracy to commit racketeering, 18
U.S.C. § 1962(d) and one count of filing a false income tax return,
26 U.S.C. § 7206(1).

-4-
of specified properties, and that in lieu of forfeiture he could

pay half the market value of these properties, which amounted to

only $178,750.

The plea agreement contained a separate section titled

"Waiver of Rights to Appeal and to Bring Collateral Challenge" that

stated:

Defendant is aware that Defendant has the
right to challenge his sentence and guilty
plea on direct appeal. Defendant is also
aware that Defendant may, in some
circumstances, be able to argue that his plea
should be set aside, or his sentence set aside
or reduced, in a collateral challenge (such as
pursuant to a motion under 28 U.S.C. § 2255).

In consideration of the concessions made by
the U.S. Attorney in this agreement, Defendant
knowingly and voluntarily waives his right to
appeal or collaterally challenge:

(1) Defendant's guilty plea and any other
aspect of Defendant's conviction, including,
but not limited to, any rulings on pretrial
suppression motions or any other pretrial
dispositions of motions and other issues;

(2) The adoption by the District Court at
sentencing of any of the positions found in
Paragraph 3 which will be advocated by the
U.S. Attorney with regard to offense conduct,
adjustments and/or criminal history under the
U.S. Sentencing Guidelines; and

(3) The imposition by the District Court of a
sentence which does not exceed that being
recommended by the U.S. Attorney, as set out
in Paragraph 4 and, even if the Court rejects
one or more positions advocated by the U.S.
Attorney or Defendant with regard to the
application of the U.S. Sentencing Guidelines.

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 Defendant's waiver of rights to appeal and to
bring collateral challenges shall not apply to
appeals or challenges based on new legal
principles in First Circuit or Supreme Court
cases decided after the date of this agreement
which are held by the First Circuit to have
retroactive effect.

Paragraph three of the plea agreement set forth the

positions the government would take at sentencing: the government

would argue for a base offense level of 28 for bribery resulting in

government losses of between $1 million and $2.5 million under

U.S.S.G. § 2C1.1(a)-(b) and § 2E1.1; would argue for certain

adjustments in that offense level, including a two-level increase

under U.S.S.G. § 3B1.3 because the offense involved an abuse of a

position of trust; and would recommend an adjusted offense level of

33, for a sentencing range of 135-168 months. The plea agreement

further stated that Sotirion could contest these calculations at

sentencing. Paragraph four of the agreement stated that the

government would recommend a term of incarceration within the

sentencing range of 135-168 months.

At the change-of-plea hearing before a magistrate judge,

the judge inquired into Sotirion's understanding of the plea

agreement and the consequences of his plea. The judge called

attention to the waiver provision, asking, "And do you understand

that you are waiving your right to appeal this case except I guess

if there are legal issues that arise subsequent hereto. Okay?"

Sotirion responded, "Yes." In addition, the magistrate judge

-6-
confirmed with Sotirion that (1) he had had an opportunity to go

over the plea agreement in detail, (2) he understood the terms of

the plea agreement, (3) he understood that at sentencing the

government would argue for a two-level increase for abuse of trust

and would argue for a sentencing range of 135-168 months, (4) there

were no aspects of the plea agreement that he did not understand or

wanted to raise with the court, and (5) he had "gone over [the plea

agreement] line by line" with counsel.

At sentencing, the court calculated an adjusted offense

level of 30, based in part on the two-level increase for abuse of

a position of trust. Although defense counsel successfully

challenged several offense-level increases sought by the

government,4 counsel did not object to the increase for abuse of

trust. This adjusted offense level, combined with Sotirion's

criminal history category of I, resulted in an advisory sentencing

guidelines range of 97-121 months. The court sentenced Sotirion to

109 months of imprisonment, the middle of the guidelines range.5

At the close of the hearing, the court stated that Sotirion had "a

4
Defense counsel successfully argued that a two-level
increase for obstruction of justice was inapplicable, U.S.S.G.
§ 3C1.1, and that only a three-level increase for his role as a
manager in the offense was applicable, rather than a four-level
increase for his role as a leader, U.S.S.G. § 3B1.1(a),(b).
5
The court sentenced Sotirion to 109 months on each of the
two racketeering counts and 36 months on the income tax count, all
to be served concurrently.

-7-
right to appeal the sentence. Even though you pled guilty, that

does not limit your right to appeal."

In January 2008, Sotirion filed a § 2255 petition arguing

that the increase for abuse of trust was not applicable to his

offense under the sentencing guidelines. See U.S.S.G. § 2C1.1,

cmt. 6 (stating that an increase for abuse of trust under § 3B1.3

does not apply to an offense level calculated under § 2C1.1). He

contended that his sentence was therefore based on inaccurate

information in violation of due process and was the result of

ineffective assistance of counsel at sentencing. The district

court dismissed the petition, noting that the government did not

contest that a "technical error" had been made in the advisory

guidelines calculation, but concluding that the appellate waiver

was knowing and voluntary and its enforcement would not constitute

a miscarriage of justice. This appeal followed.

II.

A. Procedural Default

The government first contends that Sotirion has

procedurally defaulted his challenge to the validity of the

appellate waiver by failing to raise it on direct review, and

therefore he can obtain collateral relief only if he can

demonstrate cause for his procedural default and actual prejudice

resulting from the alleged error. See Bousley v. United States,

523 U.S. 614, 622 (1998). However, as the government concedes, it

-8-
did not raise this procedural default argument in the district

court, and the district court did not dismiss Sotirion's § 2255

petition on this basis. Because the government failed to raise

procedural default as a defense to Sotirion's § 2255 petition, we

deem it waived. See Barreto-Barreto v. United States, 551 F.3d 95,

98 (1st Cir. 2008) ("The government waived the issue of procedural

default by not raising it in response to the § 2255 petitions

below. We decline to overlook the government's waiver."); Oakes v.

United States, 400 F.3d 92, 96 (1st Cir. 2005) ("[P]rocedural

default is an affirmative defense and . . . therefore, the

government may lose the defense by neglecting to raise it in a

response to a habeas petition.").

B. Appellate Waiver

The government next contends that Sotirion entered into

a valid and enforceable waiver of his right to appeal or

collaterally attack his sentence, and therefore his claim of

sentencing error is barred. Sotirion argues that the waiver

provision is unenforceable because (1) the magistrate judge did not

inquire specifically into his waiver of appellate rights at the

change-of-plea colloquy, as required by Federal Rule of Criminal

Procedure 11(b)(1)(N), and therefore did not ensure that he entered

into the waiver knowingly and voluntarily, and (2) enforcement of

the waiver would result in a miscarriage of justice.

-9-
 In this circuit, presentence waivers of appellate rights

are enforceable if they meet certain criteria. Teeter, 257 F.3d at

23. First, we require that the defendant enter into the waiver

"knowingly and voluntarily." Id. at 24-25; accord United States v.

Torres-Oliveras, 583 F.3d 37, 40 (1st Cir. 2009). In examining

whether the defendant knowingly and voluntarily waived his

appellate rights, the text of the written plea agreement and the

change-of-plea colloquy are of critical importance. Teeter, 257

F.3d at 24. We evaluate whether the written plea agreement

"contains a clear statement elucidating the waiver and delineating

its scope," and whether the district court "inquire[d] specifically

at the change-of-plea hearing into any waiver of appellate rights,"

as required by Rule 11(b)(1)(N). Id. Second, even if the waiver

is knowing and voluntary, we retain discretion not to enforce the

waiver if it would result in a "miscarriage of justice." Id. at

25; accord Torres-Oliveras, 583 F.3d at 42.

1. Claim of Rule 11(b)(1)(N) Error

Sotirion contends that the magistrate judge failed to

adequately inform him of the scope of his appellate waiver as

instructed by Rule 11(b)(1)(N), and therefore his appellate waiver

was not knowing and voluntary.

Rule 11(b)(1)(N) states that prior to accepting the

defendant's guilty plea, the court "must address the defendant

personally in open court" and "inform the defendant of, and

-10-
determine that the defendant understands, the following: . . . (N)

the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence." This provision was

added to Rule 11 in 1999 to aid courts in "ensur[ing] that waivers

of appellate rights are knowing and voluntary." United States v.

Borrero-Acevedo, 533 F.3d 11, 14 (1st Cir. 2008) (citing Fed. R.

Crim. P. Advisory Committee 1999 Notes).

In United States v. Vonn, 535 U.S. 55 (2002), the Supreme

Court addressed the standard for reviewing a defendant's

unpreserved claim that his guilty plea should be set aside on the

basis of Rule 11 error -- in that case, the court's failure to

apprise the defendant of his right to counsel if he went to trial.

The Court held that a defendant who does not lodge a timely

objection to Rule 11 error in the district court must satisfy the

plain error standard in Federal Rule of Criminal Procedure 52(b).

Id. at 58-59. In a later case, the Court clarified the showing a

defendant must make to obtain relief for an unpreserved claim of

Rule 11 error under the third prong of the plain error test.

United States v. Dominguez Benitez, 542 U.S. 74 (2004). The Court

held that "a defendant who seeks reversal of his conviction after

a guilty plea, on the ground that the district court committed

plain error under Rule 11, must show a reasonable probability that,

but for the error, he would not have entered the plea." Id. at 83.

-11-
 In Borrero-Acevedo, as a matter of first impression, we

applied Vonn and Dominguez Benitez to a defendant's claim that his

waiver of appellate rights should be set aside because the district

court failed to comply with Rule 11(b)(1)(N) at his change-of-plea

colloquy. We held that "the plain error standard applies to

unpreserved claims of violations of Fed. R. Crim. P. 11(b)(1)(N),"

reasoning that Vonn was not by its terms restricted to particular

types of Rule 11 errors. Borrero-Acevedo, 533 F.3d at 13, 16. We

further held that, in order to establish that the Rule 11(b)(1)(N)

error affected his substantial rights under the third prong of the

plain error test, the defendant must show "a reasonable probability

that he would not have entered the plea had the error not been

made." Id. at 13-14.

Sotirion concedes that his unpreserved Rule 11(b)(1)(N)

challenge to the waiver is subject to plain error review under Vonn

and Borrero-Acevedo.6 "In order to show plain error, a defendant

6
We note that the plain error standard applies only where, as
here, a defendant's challenge to his appellate waiver is based on
an "unpreserved claim of Rule 11(b)(1)(N) error." Borrero-Acevedo,
533 F.3d at 13. However, a defendant could also claim that his
appellate waiver was not knowing and voluntary on grounds unrelated
to the district court's compliance with Rule 11(b)(1)(N) -- for
example, on the ground that the defendant was incompetent when he
signed the waiver. Plain error review would not apply if the
defendant challenged the knowing and voluntary nature of his
appellate waiver on grounds independent of the district court's
compliance with Rule 11(b)(1)(N). See United States v. Goodson,
544 F.3d 529, 539 n.9 (3d Cir. 2008) ("The plain error standard
does not apply when a defendant's challenge to the knowing or
voluntary nature of a waiver does not involve the district court's
compliance with the plea colloquy required by the Rule. For

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must demonstrate that there is (1) error, (2) that is plain, and

(3) that affect[s] substantial rights. If all three conditions are

met, an appellate court may then exercise its discretion to notice

a forfeited error, but only if (4) the error seriously affect[s]

the fairness, integrity, or public reputation of judicial

proceedings." Borrero-Acevedo, 533 F.3d at 15 (internal citation

and quotation marks omitted).

The magistrate judge's inquiry into Sotirion's appellate

waiver during the change-of-plea colloquy, although not as thorough

or precise as it could have been, did not constitute obvious Rule

11(b)(1)(N) error under the second prong of the plain error test.

Sotirion does not dispute that his plea agreement contained a clear

waiver of his right to directly appeal or collaterally attack his

sentence. He agreed to waive his appellate rights if, inter alia,

the court imposed a sentence that did not exceed "that being

recommended by the U.S. Attorney, as set out in Paragraph 4," 135-

168 months. Sotirion's 109-month sentence falls squarely within

the scope of this waiver.7

example, a defendant who claims that he was misled or coerced into
entering the agreement, or that he was incompetent when he signed
the waiver, challenges the validity of the waiver itself, not the
Rule 11 colloquy. Such a challenge would receive de novo review
without the need for objection in the district court.").
7
This is not a case where the defendant agreed to waive his
right to appeal only if the court imposed a sentence that fell
within the correct sentencing guidelines range. Cf. United States
v. McCoy, 508 F.3d 74, 78 (1st Cir. 2007) (concluding that, where
waiver stated that it applied only if the sentence imposed fell

-13-
 The magistrate judge specifically called attention to the

waiver provision during the change-of-plea colloquy, albeit

briefly, asking, "And do you understand that you are waiving your

right to appeal this case except I guess if there are legal issues

that arise subsequent hereto. Okay?" Sotirion responded, "Yes."

The magistrate judge did not fail to address the waiver provision

entirely, nor did he contradict the terms of the written waiver.

Thus, this colloquy is different from the one found deficient in

Teeter, on which Sotirion primarily relies. See Teeter, 257 F.3d

at 26-27 (finding waiver not knowing and voluntary where district

court not only omitted any mention of appellate waiver during

change-of-plea colloquy, but also directly contradicted waiver,

asking "[D]o you also understand that both you and the government

will have a right to appeal any sentence I impose?").

Furthermore, at the plea colloquy, Sotirion, a college

graduate, stated that he had reviewed the plea agreement "line by

line" with counsel, he understood the terms of the agreement, and

there were no aspects of the agreement he wished to raise with the

court. He further stated that he understood that at sentencing,

the government would argue for a two-level increase for abuse of

trust and a sentencing range of 135-168 months. Defense counsel

confirmed that he had discussed the plea agreement with Sotirion.

"within the guidelines range," without setting forth a proposed
sentencing range, defendant waived only his right to appeal a
correct application of the guidelines).

-14-
 Sotirion contends that the magistrate judge's statement

that he was waiving his appellate rights "except I guess if there

are legal issues that arise subsequent hereto" was misleading

because it suggested that Sotirion retained the right to appeal or

collaterally attack his sentence based on errors that occurred

after the entry of the guilty plea -- such as, for example, errors

at sentencing. The magistrate judge's language does not support

this strained interpretation. We agree with the government that

the judge's mention of an exception for "legal issues that arise

subsequent hereto" referred to the plea agreement's clear statement

that the waiver "shall not apply to appeals or challenges based on

new legal principles . . . ."

Sotirion further argues that the Rule 11 colloquy was

inadequate because the magistrate judge did not separately discuss

the waiver of his right to collaterally attack his sentence, as

opposed to his right to a direct appeal. Although the district

court must "inquire specifically" at the hearing "into any waiver

of appellate rights," we have refrained from requiring any

"mandatory language for such an inquiry because the circumstances

will vary from case to case." Teeter, 257 F.3d at 24 & n.7; see

also United States v. Chandler, 534 F.3d 45, 50 (1st Cir. 2008)

(holding that court need not "recite the appeal waiver verbatim").

Instead, the court's inquiry "should be specific enough to confirm

the defendant's understanding of the waiver and [his] acquiescence

-15-
in the relinquishment of rights that it betokens." Teeter, 257

F.3d at 24 n.7. Although it would have been preferable for the

magistrate judge to specifically refer to the waiver of the right

to collateral challenge as well as the waiver of the right to

direct appeal, the judge's inquiry adequately confirmed Sotirion's

understanding that he was giving up the important right to

challenge his sentence after conviction.

Finally, Sotirion points out that at sentencing, the

district judge incorrectly stated that he had the right to appeal

his sentence. However, the judge's statement at sentencing, made

approximately five months after the change-of-plea colloquy, does

not serve to invalidate Sotirion's earlier waiver. United States

v. Gil-Quezada, 445 F.3d 33, 36-37 (1st Cir. 2006) ("In this case,

what the judge said at sentencing is irrelevant to our waiver

inquiry. . . . The judge's comments at the disposition hearing,

nearly four months later, have no bearing on whether Gil knowingly

and voluntarily waived his appellate rights when he entered the

plea."); Teeter, 257 F.3d at 25 (stating that a sentencing court's

broad assurances of the right to appeal "muddy the waters" and are

"to be avoided," but do not "effect a per se nullification of a

plea-agreement waiver of appellate rights.").

On this record, we conclude that Sotirion has not

demonstrated obvious Rule 11(b)(1)(N) error. We therefore need not

-16-
address whether he has not met his burden under the third and

fourth prongs of the plain error test.

2. Miscarriage of Justice

Sotirion further contends that even if his waiver is not

invalidated on the basis of Rule 11(b)(1)(N) error, we should not

enforce the waiver because it would work a miscarriage of justice.

This requires us to confront a question raised but not answered by

Borrero-Acevedo: whether, after Vonn and Dominguez Benitez, the

miscarriage of justice exception set forth in Teeter remains

viable.

In Teeter, we cautioned that because appellate waivers

"are made before any manifestation of sentencing error emerges,

appellate courts must remain free to grant relief from them in

egregious cases." 257 F.3d at 25. Appellate waivers are meant to

"bring finality to proceedings conducted in the ordinary course,"

but are not intended to leave defendants "totally exposed to future

vagaries (however harsh, unfair, or unforeseeable)." Id.

Therefore, we held that "if denying a right of appeal would work a

miscarriage of justice, the appellate court, in its sound

discretion, may refuse to honor the waiver." Id.

This miscarriage of justice exception is meant only for

"egregious cases" and is to be applied "sparingly and without undue

generosity." Id. at 25, 26; see also id. at 25 n. 10 (listing

examples of a miscarriage of justice, including where the defendant

-17-
claims that the sentence imposed exceeded the maximum penalty

permitted by law or that the sentence violated a material term of

the plea agreement). The miscarriage of justice standard "requires

a strong showing of innocence, unfairness, or the like," Gil-

Quezada, 445 F.3d at 37, and is "demanding enough to prevent

defendants who have agreed to waive their right to appeal from

successfully pursuing garden-variety claims of error," Teeter, 257

F.3d at 26.

As a threshold matter, the government questions whether,

after Vonn and Dominguez Benitez, Teeter's narrow miscarriage of

justice exception remains viable. In Borrero-Acevedo, 533 F.3d at

18-19, we stated, in dicta:

In light of Vonn and Dominguez Benitez, one
might question what is left of this circuit's
former rule on enforceability of waiver
clauses, announced in United States v. Teeter.
. . .

More precisely, the question after Vonn and
Dominguez Benitez is whether there is any
discretionary power left in this court to
decline to enforce a waiver of appeal clause
where we conclude that enforcing the waiver
would be a miscarriage of justice.

We declined to reach that question in Borrero-Acevedo, and Sotirion

urges us to address it in this case.

We conclude that the Supreme Court's decisions in Vonn

and Dominguez Benitez did not deprive us of the "inherent power" to

refuse to enforce an appellate waiver where a miscarriage of

-18-
justice occurs.8 Teeter, 257 F.3d at 25-26. Teeter was concerned

with two separate problems posed by appellate waivers: first, as

with other waivers of rights, whether the appellate waiver was

entered into knowingly and voluntarily, and second, in recognition

of the particular dangers posed by a prospective waiver of the

right to challenge errors that have not yet occurred, whether

enforcement of the waiver would work a miscarriage of justice. Id.

at 23-25.

In Borrero-Acevedo, we applied Vonn and Dominguez Benitez

to hold that the plain error standard governs when a defendant

challenges his appellate waiver on the basis of an unpreserved

claim of Rule 11(b)(1)(N) error. However, the adequacy of the

change-of-plea colloquy under Rule 11(b)(1)(N) and the clarity of

the written plea waiver both relate to Teeter's first concern:

whether the waiver was knowing and voluntary. That inquiry is

distinct from the question of whether, even if the appellate waiver

was entered into knowingly and voluntarily, its enforcement would

work a miscarriage of justice. See Teeter, 257 F.3d at 25-26

(stating that waivers are "presumptively valid" if knowing and

voluntary, but are still subject to a general exception for

miscarriage of justice); see also, e.g., United States v. McCoy,

8
Judge Howard believes that the above-quoted dicta from
Borrero-Acevedo is contextually limited to claims of Rule 11 error,
and thus he believes that there is no real tension between that
dicta and our holding here that we may decline to enforce a waiver
of appeal.

-19-
508 F.3d 74, 77 (1st Cir. 2007) ("In this circuit, an appeal waiver

is enforceable if the defendant knowingly and voluntarily agreed to

its terms and enforcement would not result in miscarriage of

justice.") (emphasis added); Gil-Quezada, 445 F.3d at 36

(explaining that, under Teeter, "even if the plea agreement and the

change-of-plea colloquy pass muster, we will not enforce the waiver

if doing so would work a miscarriage of justice").

Thus, a defendant who fails on his Rule 11(b)(1)(N)

challenge to his appellate waiver, as Sotirion has here, must

nevertheless be afforded the opportunity to demonstrate that

enforcement of the waiver would work a miscarriage of justice. In

cases decided after Vonn and Dominguez Benitez, we have

consistently reaffirmed that the appellate court "retains 'inherent

power to relieve the defendant of the waiver . . . where a

miscarriage of justice occurs.'" Torres-Oliveras, 583 F.3d at 42

(quoting Teeter, 257 F.3d at 25-26) (evaluating Rule 11(b)(1)(N)

challenge to appellate waiver under plain error standard, but then

separately analyzing whether enforcement of waiver would constitute

miscarriage of justice); see also, e.g., United States v. Isom, 580

F.3d 43, 50 (1st Cir. 2009) ("Appellate waivers are binding if . .

. the denial of the right to appeal would not be a substantial

miscarriage of justice."); United States v. Padilla Colon, 578 F.3d

23, 28 (1st Cir. 2009) (same). Other circuits that apply a similar

miscarriage of justice exception have likewise affirmed the

-20-
exception's continued viability after Vonn and Dominguez Benitez.

See, e.g., United States v. Corso, 549 F.3d 921, 928-31 (3d Cir.

2008) (evaluating challenge to waiver based on alleged Rule

11(b)(1)(N) violation for plain error, and then separately

addressing whether enforcement of the waiver would constitute a

miscarriage of justice).9

In this case, however, we conclude that enforcement of

the appellate waiver would not work a miscarriage of justice.

Sotirion's § 2255 petition claims that the district court erred in

applying a two-level increase for abuse of trust in its calculation

of his advisory sentencing guidelines range. He correctly points

out that his base offense level was calculated under U.S.S.G.

§ 2C1.1, and the commentary to this provision states that the

§ 3B1.3 increase for abuse of trust shall not be applied. See

U.S.S.G. §2C1.1, cmt. 6. At the time, all of the parties involved,

9
We note that there is an open question of whether, and the
extent to which, the miscarriage of justice inquiry under Teeter
overlaps with the fourth prong of the plain error test, which asks
whether the claimed Rule 11(b)(1)(N) error "seriously affect[ed]
the fairness, integrity, or public reputation of the judicial
proceedings," Borrero-Acevedo, 533 F.3d at 15 (internal quotation
marks and citation omitted). See, e.g., Corso, 549 F.3d at 931 n.3
(noting the question but declining to resolve it). We need not
resolve that issue here, as we conclude that Sotirion's Rule
11(b)(1)(N) claim fails on the second prong of the plain error test
and therefore we do not reach the third and fourth prongs. We
therefore do not speculate whether there could be situations in
which a defendant claiming Rule 11(b)(1)(N) error fails to meet his
burden under the third and fourth prongs of the plain error test,
and yet nevertheless is able to demonstrate a miscarriage of
justice under Teeter.

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including the probation officer, the district judge, defense

counsel, and the government, failed to realize that the abuse-of-

trust increase was inapplicable. If the district court had not

erroneously applied the two-level increase, it would have

calculated an advisory guidelines range of 78-97 months rather than

97-121 months.

This miscalculation of the advisory guidelines range is

precisely the kind of "garden-variety" claim of error contemplated

by Sotirion's appellate waiver. Teeter, 257 F.3d at 26. Such an

error, even if under ordinary circumstances it would constitute

reversible error, cannot "vault the hurdle erected by the waiver."

United States v. Calderon-Pacheco, 564 F.3d 55, 59 (1st Cir. 2009)

(holding that alleged error was "a garden-variety claim that the

sentencing court misunderstood the preferred approach to

consecutive versus concurrent sentences under the advisory

guidelines" and did not "even closely approach[]" the miscarriage

of justice standard); see also United States v. Cardona-Díaz, 524

F.3d 20, 23-24 (1st Cir. 2008) (holding that district court's

erroneous belief that defendant had agreed to an 87-month sentence,

when in fact the plea agreement stated only that the government

would recommend an 87-month sentence, did not work a miscarriage of

justice); United States v. Edelen, 539 F.3d 83, 87 (1st Cir. 2008)

(finding claims that court erred in applying official-victim

sentencing enhancement and failing to consider sentencing disparity

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between crack and powder cocaine did not constitute miscarriage of

justice); Corso, 549 F.3d at 931 (holding that alleged errors in

application of abuse-of-trust and number-of-victim enhancements in

calculating guidelines range did not constitute miscarriage of

justice). Sotirion does not claim that he was sentenced in excess

of the maximum penalty permitted by law, or that his sentence

violated a material term of his plea agreement. See Teeter, 257

F.3d at 25 n. 10. "If the mere fact that a defendant has arguments

he could potentially invoke on appeal were allowed to invalidate a

waiver, then appellate waivers would become meaningless." Edelen,

539 F.3d at 87.

Indeed, far from working a miscarriage of justice,

Sotirion's plea agreement conferred significant benefits on him.

Pursuant to the plea agreement, the government agreed to dismiss 95

of the 98 counts against Sotirion arising from his orchestration of

a massive, decade-long scheme of bribery, embezzlement, and fraud

in the operation of the SHA. In addition, his forfeiture and

restitution obligations were substantially limited and he retained

the right to contest each of the government's positions at

sentencing. The district court acknowledged at the hearing on

Sotirion's § 2255 petition that the sentencing guidelines range did

have "some role" in the court's decision about what sentence to

impose on Sotirion. However, the court ultimately sentenced him to

109 months, a term 59 months below the upper sentence sought by the

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government and only 12 months above the advisory guidelines range

that would have applied if the abuse-of-trust enhancement had not

been adopted.

In an effort to suggest that his claim is not merely a

claim of garden-variety sentencing error but instead has

constitutional dimensions, Sotirion argues that the guidelines

error violated his due process rights and was the result of

ineffective assistance of counsel at sentencing. Based on the

misapplication of the abuse-of-trust enhancement, he argues that

his sentence reflected inaccurate factual information and that

defense counsel was ineffective in failing to challenge the

enhancement at sentencing.10 Although we do not foreclose the

possibility that, in an egregious case, counsel's inadequate

performance at sentencing could work a miscarriage of justice, we

are confident in concluding that was not the case here. Defense

counsel's performance at sentencing was not constitutionally

10
Sotirion also argues, for the first time on appeal, that his
waiver should not be enforced because his plea negotiations were
"tainted by ineffective assistance of counsel," and therefore
enforcement of the resulting plea agreement and waiver would work
a miscarriage of justice. See Teeter, 257 F.3d at 25 n.9 (noting
that a claim that the plea proceedings were infected by
constitutionally deficient assistance of counsel could fall within
miscarriage of justice exception). However, Sotirion did not
present this argument to the district court; instead, he argued
only that counsel provided ineffective assistance by failing to
challenge the abuse-of-trust enhancement at sentencing. Thus, we
deem the argument waived. United States v. Slade, 980 F.2d 27, 30
(1st Cir. 1992) ("It is a bedrock rule that when a party has not
presented an argument to the district court, she may not unveil it
in the court of appeals.")

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deficient. See United States v. Strickland, 466 U.S. 668, 688

(1984). Instead, counsel ably represented Sotirion at sentencing,

successfully opposed several enhancements sought by the government,

and ultimately secured a sentence of 109 months, well below the

sentence sought by the government. Moreover, the guidelines error

made by counsel was also made by the government, the court, and the

probation officer.

Sotirion likewise was not deprived of due process at

sentencing. The guidelines miscalculation was exactly the kind of

routine error contemplated by his appellate waiver, and Sotirion

knowingly and voluntarily agreed to that waiver as part of a

negotiated plea agreement that accorded significant benefits to

him. In these circumstances, it is not a miscarriage of justice to

hold Sotirion to the bargain struck in his plea agreement.

Affirmed.

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