United States Court of Appeals
For the First Circuit
No. 09-2410
UNITED STATES OF AMERICA,
Appellee,
v.
VAN THI NGUYEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Lipez and Howard, Circuit Judges.
Jane Elizabeth Lee, by appointment of the court, on brief for
appellant.
Seth R. Aframe, Assistant United States Attorney, and John P.
Kacavas, United States Attorney, on brief for appellee.
September 1, 2010
SELYA, Circuit Judge. Defendant-appellant Van Thi Nguyen
pleaded guilty to criminal charges pursuant to a plea agreement
(the Agreement). The district court sentenced her, and that
sentence is the focal point of this appeal. Concluding, as we do,
that appellate review is foreclosed by a waiver-of-appeal provision
contained in the Agreement, we dismiss the appeal.
Because this appeal follows a guilty plea and concomitant
sentence, we take the facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the transcript of the disposition hearing. See United
States v. Calderón-Pacheco, 564 F.3d 55, 56 (1st Cir. 2009); United
States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
In October of 2006, a task force composed of federal Drug
Enforcement Administration agents and New Hampshire law enforcement
officers unearthed a large-scale marijuana cultivation operation.
Subsequent investigation revealed that the operators had acquired
no fewer than eleven residences in central and southern New
Hampshire as sites for cultivating marijuana. The appellant played
key roles in acquiring certain of these properties and in operating
the marijuana-growing scheme.
In due season, a federal grand jury empaneled in the
District of New Hampshire handed up an indictment that charged the
appellant with conspiracy to possess with intent to manufacture
1,000 or more marijuana plants, possession with intent to
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distribute 1,000 or more marijuana plants, and wire fraud. See 21
U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 1343. After originally
maintaining her innocence, the appellant pleaded guilty, pursuant
to the Agreement, to one count of possession with intent to
manufacture 1,000 or more marijuana plants and to two counts of
wire fraud.
The Agreement contained a waiver-of-appeal provision,
which explained with conspicuous clarity that, by entering into the
Agreement, the appellant — with exceptions not relevant here —
surrendered her right to appeal any sentence imposed on the counts
of conviction. At the change-of-plea hearing, the district court
called this provision to the appellant's attention and ensured that
she grasped its import.
The district court convened the disposition hearing on
September 28, 2009. The court conducted a careful inquiry into the
appellant's understanding of the PSI Report. The appellant
confirmed that she had discussed the report with her lawyer and
fully understood its contents.
The court then adopted the guideline calculations
adumbrated in the PSI Report and sentenced the appellant to an 83-
month term of immurement, to be followed by four years of
supervised release. The court required, as one of several
conditions of supervised release, that the appellant submit to a
drug test within fifteen days of her release from confinement and
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to periodic drug tests thereafter during her supervised release
term. The appellant did not interpose any contemporaneous
objection to the drug-testing condition.
This timely appeal ensued. The appellant, through new
appellate counsel, advances two claims of error. We examine these
claims sequentially.
Federal Rule of Criminal Procedure 32(i)(1)(A) requires
a sentencing court to "verify that the defendant and the
defendant's attorney have read and discussed the presentence
report . . . ." The appellant's principal claim of error posits
that the district court failed adequately to comply with this
requirement.
In order to succeed on this claim, the appellant must
surmount a threshold barrier: the waiver-of-appeal provision
contained in the Agreement. In general, a waiver of appellate
rights is enforceable in a criminal case if and to the extent that
the "defendant enter[ed] into it knowingly and voluntarily."
United States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001).
Determining whether this benchmark has been achieved requires two
steps, collectively comprising an appraisal of the nature and
circumstances of the waiver itself. Id. First, the plea agreement
must clearly set forth the scope and terms of the waiver. Id.
Second, the sentencing court must pay particular heed to the
waiver, questioning the defendant specifically about her
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understanding of the waiver provision and its ramifications. Id.;
see also Fed. R. Crim. P. 11(b)(1)(N).
If this appraisal shows that the waiver was made
knowingly and voluntarily, the waiver is presumptively enforceable.
But if the challenger persists, an additional step must be taken:
even if the waiver passes muster at the first two steps, an
appellate court will not enforce it if doing so would work a
miscarriage of justice.1 See Sotirion v. United States, ___ F.3d
___, ___ (1st Cir. 2010) [2010 WL 3025511, at *4]; Teeter, 257 F.3d
at 25. The circumstances potentially justifying a refusal to
enforce a waiver on this ground are "infinitely variable." Teeter,
257 F.3d at 25, n.9. They may include factors related to the
nature and circumstances of the waiver itself, but they also may
include unrelated factors. We have noted that appropriate factors
for consideration in determining whether enforcement of a waiver of
appeal would lead to a miscarriage of justice include the
character, clarity, and gravity of the claim of error, its impact
on the defendant, any possible prejudice to the government that
might accompany a refusal to honor the waiver, and the extent to
1
To the extent that United States v. Isom, 580 F.3d 43, 50
(1st Cir. 2009), suggests that the "miscarriage of justice" step in
the Teeter analysis is limited to ensuring that the waiver was
entered into knowingly and voluntarily, it is inconsistent with our
other cases and does not properly limn the distinction between the
determination of whether a waiver was knowing and voluntary and our
independent discretion to refuse to enforce a waiver in order to
avoid a miscarriage of justice.
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which the defendant can fairly be said to have acquiesced in the
result. Id. at 26. "[E]ven if the waiver is knowing and
voluntary, we retain discretion not to enforce the waiver if it
would result in a miscarriage of justice." Sotirion, ___ F.3d at
___ [2010 WL 3025511, at *4] (citations and internal quotation
marks omitted).
In the case at hand, the appellant does not question
either the clarity of the waiver or her understanding of it. In
effect, she concedes that she knowingly and voluntarily entered
into the waiver and, instead, zeroes in on the miscarriage of
justice exception. Thus, we train the lens of our inquiry on the
prospect of a miscarriage of justice.
It is rare that a court may refuse to enforce a clear and
well-comprehended waiver of appeal based on the exception for
miscarriages of justice. See, e.g., United States v. Pratt, 533
F.3d 34, 37 (1st Cir. 2008). After all, the miscarriage of justice
exception is to "be applied sparingly and without undue
generosity." United States v. De-La-Cruz Castro, 299 F.3d 5, 13
(1st Cir. 2002) (quoting Teeter, 257 F.3d at 26); see also United
States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007). We add that,
in order to show a miscarriage of justice, a party who seeks to
appeal in the teeth of a knowing and voluntary waiver of appeal
must show more than reversible error. Triggering the miscarriage
of justice exception requires, at a bare minimum, an increment of
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error more glaring than routine reversible error. Miliano, 480
F.3d at 608.
In this instance, the appellant claims that the district
court violated Rule 32(i)(1)(A) by failing to have the PSI Report
translated into Vietnamese (her native tongue). The record belies
this claim.
At the disposition hearing, the district court went the
extra mile. It confirmed that the appellant was familiar with, and
fully understood, the PSI Report. The court also confirmed that the
appellant's lawyer had thoroughly explained it to her. In the
course of this inquiry, the appellant's counsel assured the court
that his client understood English very well. He likewise assured
the court that the appellant had advised him that she understood
everything in the report. When the court addressed the appellant
directly, she confirmed what her counsel had said. The district
court was entitled to rely on these representations. See United
States v. Cruz, 981 F.2d 613, 620 (1st Cir. 1992). Doing so did not
constitute a miscarriage of justice.
In an effort to blunt the force of this reasoning, the
appellant argues that the district court violated her rights under
the Court Interpreters Act, 28 U.S.C. § 1827, by not requiring
translation of the PSI Report into Vietnamese. The short answer to
this plaint is that the district court never found, and the record
does not suggest, that the appellant needed the services of an
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interpreter. Indeed, the district court, as a precaution, prudently
arranged for the presence of an interpreter at sentencing, but the
appellant and her lawyer made it abundantly clear that the appellant
did not require any such assistance. Accordingly, the appellant's
invocation of the Court Interpreters Act rings hollow.
In sum, the claim that the district court violated Rule
32(i)(1)(A) is weak, and the claim that the court violated the Court
Interpreters Act is simply wrong. In light of the appellant's
representations, it appears that the absence of a translation had
no effect on her substantial rights. And at any rate, the
appellant's conduct contributed heavily to the lack of a
translation. Under these circumstances, there is no principled way
in which we can find a miscarriage of justice.
The appellant's other claim of error concerns the
condition of supervised release directing her to submit to periodic
drug testing. The waiver-of-appeal provision applies to this claim
as well.
Once again, the appellant's only hope is to raise the
incubus of a miscarriage of justice. Under ordinary circumstances,
the district court has significant discretion in formulating
conditions of supervised release. See, e.g., United States v.
Brown, 235 F.3d 2, 4 (1st Cir. 2000). That discretion is heightened
here because the drug-testing condition is one of the standard
conditions of supervised release. See 18 U.S.C. § 3583(d); USSG
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§5D1.3(a)(4). As such, its imposition is presumptively appropriate.
See, e.g., United States v. Paul, 542 F.3d 596, 600 (7th Cir. 2008);
United States v. De Los Santos, 420 F.3d 10, 15-16 (1st Cir. 2005).
The appellant argues that the drug-testing condition
should not have been imposed because nothing in the record suggests
that she herself used drugs. This is a non-sequitur. Even though
a district court has discretion to refrain from imposing this
standard condition of supervised release, see, e.g., 18 U.S.C.
§ 3583(d), leaving it intact does not require a showing that the
defendant has a history of drug use. See, e.g., Paul, 542 F.3d at
600; United States v. Tulloch, 380 F.3d 8, 11-12 (1st Cir. 2004)
(per curiam).
In this case, the challenged condition was plainly
warranted. The principal offense of conviction stemmed from the
appellant's central role in a large-scale, drug-related enterprise.
Thus, the challenged condition fit the circumstances of the crime.
There was no error and, a fortiori, no miscarriage of justice.
We need go no further. For the reasons elucidated above,
we dismiss the appeal.
Dismissed.
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