August 4, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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. Ramon Torres-Gonzales appeals pro se from a
district court order denying his motion for correction of his
sentence pursuant to Fed. R. App. P. 35(a), as well as from
the court's order denying his motion for reconsideration. We
affirm.
I.
The following facts are undisputed. Torres-Gonzales was
named in twenty-four counts of a twenty-seven count
indictment returned on November 1, 1990. The indictment
charged him with conspiracy to possess with intent to
distribute over five kilograms of cocaine, one hundred
kilograms of marijuana, and one kilogram of heroin, see 21
U.S.C. 841(a)(1), 846; making false statements in passport
applications, see 18 U.S.C. 1542; importing four hundred
and seventy-five kilograms of cocaine into the United States,
see 21 U.S.C. 952, 960 and 18 U.S.C. 2; possessing with
intent to distribute the four hundred and seventy-five
kilograms of cocaine, see 21 U.S.C. 841 (a)(1) and 18 U.S.C.
2; failing to file United States Customs reporting forms
with regard to the exportation of $100,000 in United States
currency, see 31 U.S.C. 5316, 5322(b), and 18 U.S.C. 2;
structuring cash transactions involving $100,000 in United
States currency, see 31 U.S.C. 5313, 5324, and 18 U.S.C.
2; and continuing criminal enterprise, see 21 U.S.C. 848.
Based onthese charges,appellant faced apossible lifesentence.
In December 1990 or January 1991, appellant agreed to be
debriefed by the government. The preliminary agreement he
entered into with the government provided that he was not
entitled at that juncture to any "specific consideration" in
exchange for providing a statement. Sometime in January or
February 1991, then-prosecutor De Jesus informed defense
counsel that, "at that moment," he was willing to recommend a
fifteen-year term of imprisonment based on appellant's
cooperation. When defense counsel later brought this
statement to the attention of prosecutor Gil, lead counsel
for the government, Gil informed him that the government
would not make such a recommendation. By that time,
prosecutor De Jesus was no longer involved in the case. On
January 31, 1992, Torres-Gonzalez entered into a plea
agreement with the government under which he agreed to plead
guilty to the pre-Sentencing Guidelines offense of continuing
criminal enterprise, and the government agreed to dismiss the
remaining counts and to recommend eighteen years'
imprisonment. The district court subsequently accepted
appellant's guilty plea and, on May 11, 1992, sentenced him
to eighteen years' imprisonment. Appellant did not directly
appeal his conviction or sentence.
On August 6, 1993, appellant filed a motion to correct
his sentence, pursuant to Fed. R. Crim. P. 35(a), based on
the first prosecutor's "offer" to recommend fifteen years'
imprisonment. Appellant also expressed great remorse for his
actions and requested that the district court exercise its
leniency to reduce the sentence to fifteen years. On August
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12, 1993, the district court denied the motion. On October
25, 1993, appellant filed a motion for reconsideration of the
denial of his Rule 35(a) motion, this time alleging that the
plea agreement that he ultimately reached with the government
was unconstitutionally coerced. On December 2, 1993, the
district court denied the motion for reconsideration. This
appeal followed.
II.
On appeal, Torres-Gonzalez advances an argument based on
contract principles. He concedes that, as a general rule,
the government may unilaterally withdraw a plea offer before
it has been approved by the district court. See Mabry v.
Johnson, 467 U.S. 504, 506-08 (1984). However, he argues
that the government is bound by such an offer if a defendant
worsens his position in reliance on it. See United States v.
Papaleo, 853 F.2d 16, 18-19 (1st Cir. 1988) (observing that
due process concerns may arise when a defendant detrimentally
relies upon a government promise and stating that plea
agreements are governed by contract principles). Although
the further details of his argument are not entirely clear,
appellant appears to contend that the government initially
promised him a lenient sentence in exchange for his
cooperation and later agreed to recommend a "lenient,"
fifteen-year sentence based on his cooperation. He further
argues that the government's promise to recommend a lenient
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sentence induced him to cooperate with the government by
making a statement and by surrendering property.
Consequently, he argues, he is entitled to specific
performance by the government of its "promise" to recommend
fifteen years' imprisonment.
At the outset, we observe that it is questionable
whether we have jurisdiction over this appeal. Appellant's
Rule 35(a) motion, filed on August 6, 1993, was denied on
August 12, 1993. The time period for appealing from the
denial of a Rule 35(a) motion is ten days. Fed. R. App. P.
4(b). Appellant's notice of appeal was not filed until
December 17, 1993, obviously well beyond this ten-day period.
Although a motion for reconsideration filed within the time
period allotted for the filing of a notice of an appeal will
extend the time for filing a notice of appeal, the October 25
motion for reconsideration was filed beyond the ten-day
period and was therefore untimely. See United States v.
Carr, 932 F.2d 67, 70 (1st Cir.), cert. denied, 112 S. Ct.
112 (1991); United States v. Russo, 760 F.2d 1229, 1230 (11th
Cir. 1985). Consequently, the motion for reconsideration did
not extend the time for appeal from the Rule 35(a) denial,
and this court is also apparently without jurisdiction to
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review the district court's denial of the motion for
reconsideration. See Russo, 760 F.2d at 1230.1
Arguably, appellant's October 25 motion advances a new
ground to set aside his sentence and could be construed as a
timely second Rule 35(a) motion or as a timely first motion
to vacate, correct, or set aside his sentence pursuant to 28
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 to his pleadings). However, assuming
without deciding that we have jurisdiction over the appeal
from the denial of the October 25 motion, appellant faces a
different hurdle. The detrimental reliance argument that
appellant advances on appeal was not presented to 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 pre-
Sentencing 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).
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district court, and hence is deemed waived. See, e.g.,
Sandstrom v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)
(arguments not made to the district court are waived).
We add that, in any event, the arguments raised on
appeal appear unavailing. We observe, first, that there is
no support whatsoever in the record for appellant's claim
that the prosecution initially promised him a lenient
sentence. Even were we to assume that such a promise had
been made, we would reject appellant's contention that the
government breached this "promise" when it recommended an
eighteen-year sentence instead of a fifteen-year sentence.
Either recommendation was relatively lenient in comparison to
the potential life sentence appellant faced.
Second, although it is undisputed that in January or
February 1991, then-prosecutor De Jesus stated his
willingness, "at that moment," to recommend fifteen years'
incarceration, it is by no means clear that De Jesus'
statement constituted a firm offer or promise to do so. See
Santoni v. FDIC, 677 F.2d 174, 179 (1st Cir. 1982) (an
estoppel claim must be supported by a definite and certain
promise). Assuming, arguendo, that it did, appellant's
detrimental reliance argument still fails. By his own
admission and version of events, the cooperation which
appellant claims was induced by De Jesus' "offer," was
completed before any specific number of years was ever
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mentioned. Under the circumstances, it cannot be said that
appellant relied upon any promise to recommend a specific
term of incarceration.
Affirmed.
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