[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
Nos. 99-1457
99-1458
99-1680
UNITED STATES,
Appellee,
v.
EDWIN GUTIERREZ-RENTAS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
[Hon. Jose Antonio Fuste, U.S. District Judge]
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Stahl, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Maria Soledad Ramirez-Becerra on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Nelson Perez-
Sosa, Assistant United States Attorney, on brief for appellee.
February 12, 2001
Per Curiam. Edwin Gutierrez-Rentas appeals from
concurrent sentences entered following guilty pleas for
three separate drug offenses. In its brief, the government
asks that the appeals be summarily dismissed.
I. Background
The pleas were entered pursuant to written plea
agreements which were essentially identical (“the
Agreements”). The Agreements purported to be pursuant to
Fed.R.Crim.P. 11(e)(1)(C), but other language in the
Agreements suggested that they were pursuant to Rule
11(e)(1)(B). Consistent with subsection (B), the Agreements
stated that “the Court is not bound by this Plea Agreement,
including but not limited to: the sentencing guidelines
calculations, stipulations, and/or sentence
recommendations.” ¶ 7.
Consistent with subsection (C), however, the
Agreements provided that the appropriate prison sentence
within the applicable guideline range was 144 months. In
arriving at that sentence, the parties agreed upon a base
offense level of 34, which would be decreased by three
levels for acceptance of responsibility and that
[b]ased on the defendant’s role in the
offense as a manager the base offense
level shall be increased by Two (2)
levels.
The Agreements, ¶ 8(d). The district court in each case
construed the Agreements as pursuant to Rule 11(e)(1)(C),
accepted the Agreements and sentenced Gutierrez to 144
months in prison, the agreed upon sentence.
At sentencing and in his sentencing memoranda,
Gutierrez argued in all three cases that he should receive
a lower sentence than the 144 months specified in the
Agreements because there was not a factual basis to support
the agreed-upon two-level enhancement for his managerial
role in the offense. He argued that the Agreements were
ambiguous with respect to whether they were entered pursuant
to Rule 11(e)(1)(B) or (C) and, therefore, the district
court could accept the Agreements but modify the sentence.
In his consolidated appeal, Gutierrez does not
repeat the argument that the Agreements should have been
construed as pursuant to Rule 11(e)(1)(B). But he persists
in the other half of his argument: that he should not have
received the two-level enhancement that he agreed to because
there is insufficient evidentiary support for a finding that
he was a manager within the meaning of U.S.S.G. § 3B1.1(c).
The government responds by arguing in its brief that because
the Agreements were entered pursuant to Rule 11(e)(1)(C),
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their terms were binding upon the sentencing courts once the
Agreements were accepted. Therefore, the government
asserts, the sentencing courts had no authority to modify
the agreed upon sentences and the appeals should be
summarily dismissed. We agree with the government that the
sentences in all three cases should be affirmed, although
the different circumstances in the three cases require
separate explanations of our disposition in each case.
II. Discussion
As an initial matter, appellant’s failure to argue
on appeal that the district court erred in construing the
Agreements as pursuant to Rule 11(e)(1)(C) provides grounds
for affirming the sentences. Where a plea agreement is
entered pursuant to subsection (C), the district court’s
only options are to accept or reject the plea under the
terms agreed to by the parties. The court may not accept
the plea and then “unilaterally” impose a more lenient
sentence than that specified in a Rule 11(e)(1)(C)
agreement. See United States v. Moure-Ortiz, 184 F.3d 1, 3 -
4 (1st Cir. 1999). “After the district court provisionally
accepted the agreement, its only recourse was to reject the
agreement if it found the negotiated sentence
unsatisfactory.” Id., at 3; see also United States v.
Barnes, 83 F.3d 934, 941 (7th Cir. 1996) (“The district court
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does not have the power to retain the plea and discard the
agreed-upon sentence, even if the sentence departs from what
the guidelines might prescribe”).
Appellant has never sought to withdraw his guilty
pleas. Instead, he seeks only modification of the sentences
entered pursuant to those pleas. Neither the district court
nor this court has authority to grant the relief requested
by appellant. See id. (noting in context of Rule 11(e)(1)(C)
agreement that “[i]f we rule that some provision of the plea
agreement is invalid, we must discard the entire agreement
and require the [defendant] and the government to begin
their bargaining all over again”). The relief that
appellant seeks would only be available if the plea
Agreements had been entered pursuant to Rule 11(e)(1)(B).
Appellant waived the argument that the district courts erred
in construing the Agreements as pursuant to subsection (C),
however, by failing to explicitly make that argument in his
brief. See Airport Impact Relief, Inc. v. Wykle, 192 F.3d
197, 207 (1st Cir. 1999) (“Issues adverted to in a
perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived for purposes of
appeal”).
Even if Gutierrez had not waived it, the argument
that the district courts erred in construing the Agreements
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as pursuant to Rule 11(e)(1)(C) would not have prevailed.
“This court has held that a question of the interpretation
of the terms of a plea agreement is an issue of fact to be
resolved by the district court.” Giorgi, 840 F.2d at 1028.
We have upheld the district court’s construction of an
ambiguous agreement where it was “consistent with the
reasonable expectations of the parties.” Id. The district
courts’ constructions of the Agreements met that standard in
each of the three cases before us.
A. Appeal No. 99-1458
The transcripts of the change of plea hearing and
sentencing hearing in this case leave no doubt that the
parties understood the plea agreement to be pursuant to
subsection (C). See United States v. Siedlik, 231 F.3d 744,
748 n.1 (10th Cir. 2000)(relying on statements by parties at
change of plea hearing and sentencing to discern whether
ambiguous plea agreement was pursuant to Rule 11(e)(1)(B) or
(C)); United States v. Kummer, 89 F.3d 1536, 1543 (11th Cir.
1996)(same).
At the change of plea hearing, on October 28, 1998,
the government attorney clearly stated that the plea was
pursuant to Rule 11(e)(1)(C). Gutierrez did not dispute
that statement and acknowledged his understanding of the
court’s explanation of the defining characteristics of a
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subsection (C) agreement. At sentencing, the judge
responded to Gutierrez’ argument that the plea was ambiguous
and should be construed as pursuant to subsection (B), by
stating that the transcripts from the change of plea hearing
made it “very clear” that the plea was entered pursuant to
subsection (C). Any ambiguity in the language of the plea
agreement was resolved at the change of plea hearing in this
case. The district court’s construction of the plea
agreement as pursuant to subsection (C) at the sentencing
hearing was consistent with the parties’ reasonable
expectations.
Gutierrez’ sentence in this case is affirmed. See
Loc. R. 27(c).
B. Appeal No. 99-1457
In this case, the ambiguous language of the
Agreements was not resolved at the change of plea hearing.
Instead, the district court’s statements exacerbated the
ambiguities by reiterating the contradictory terms included
in the Agreements. However, the change of plea hearing in
this case was held on November 4, 1998, only one week after
the change of plea hearing in Appeal No. 99-1458. The
agreements in the two cases were virtually identical.
Therefore, Gutierrez was on notice that the Agreements had
been interpreted as pursuant to Rule 11(e)(1)(C).
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Nonetheless, Gutierrez did not seek to clarify at the change
of plea hearing whether the agreement was entered pursuant
to subsection (B) or (C).
At the sentencing hearing, the district court
stated that when it accepted Gutierrez’ guilty plea, it
“considered the plea to be an 11(e)(1)(C) plea.” Arguably,
the district court ought to have acknowledged the ambiguous
nature of the plea agreement at sentencing and given
Gutierrez the opportunity to withdraw his plea if he had not
intended to plea guilty pursuant to subsection (C).
However, there would be little point in remanding now for
the court to offer appellant the chance to withdraw his
plea. Gutierrez seeks only to have his sentence modified,
not to withdraw his guilty plea. He has consistently
maintained that he does not wish to withdraw his guilty
pleas. When offered the opportunity to do so during his
sentencing hearing in Appeal No. 99-1680, he declined.
Therefore, remand for that purpose would be futile.
Gutierrez is not entitled to the relief he seeks.
Gutierrez’ sentence in this case is affirmed. See
Loc. R. 27(c).
C. Appeal No. 99-1680
In this case, as in Appeal No. 99-1457, the
ambiguity in the language of the Agreements was not resolved
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at the change of plea hearing. The district court merely
repeated the contradictory language in the Agreements,
suggesting that even if the court accepted the plea, it
would not be bound by the sentencing provisions therein.
Here again, however, the change of plea hearing in this case
followed shortly after the change of plea hearing in Appeal
No. 99-1458, at which the court had interpreted a
practically identical plea agreement as pursuant to Rule
11(e)(1)(C).
At his sentencing hearing, Gutierrez argued that
the plea agreement should be construed as pursuant to Rule
11(e)(1)(B) and that the court should not be bound by the
stipulation to the role-in-the-offense enhancement. In
response to Gutierrez’ contention that he was not a manager
under U.S.S.G. § 3B1.1, the sentencing court offered him the
chance to withdraw his plea. The court clearly stated that
it interpreted the plea agreement as pursuant to subsection
(C), but gave Gutierrez the opportunity to withdraw the
plea, if he had not intended to enter a subsection (C)
agreement. Gutierrez declined to withdraw the plea and,
instead, withdrew his request to be “relieved of [his]
admission that [he] acted as manager.”
Under these circumstances, the district court did
not err in construing the agreement as pursuant to
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subsection (C) at the time of sentencing. The sentencing
judge properly offered Gutierrez the opportunity to withdraw
from the subsection (C) agreement if it did not represent
his true intentions. However, Gutierrez declined to do so.
Thereafter, in treating the plea as pursuant to Rule
11(e)(1)(C), the district court acted in a manner
“consistent with the reasonable expectations of the
parties.” Giorgi, 840 F.2d at 1028.
Gutierrez’ sentence in this case is affirmed. See
Loc. R. 27(c).
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