United States Court of Appeals
For the First Circuit
No. 00-2332
UNITED STATES OF AMERICA,
Appellee,
v.
PATRICIA A. TEETER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Peter E. Rodway and Rodway & Horodyski on brief for
appellant.
Jay P. McCloskey, United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney, on brief for
appellee.
July 23, 2001
SELYA, Circuit Judge. In this sentencing appeal, we
address for the first time two important questions. The
principal question concerns the validity of an advance waiver of
appellate rights contained in a plea agreement.1 Although we
conclude that such waivers are not forbidden, we refuse to give
effect to the waiver in this case because the record offers no
sufficient assurance that it was tendered knowingly and
voluntarily.
Despite winning this battle, the appellant ultimately
loses the war. Entertaining her appeal, we reach the second
main question — one that involves the effect to be given to a
stipulation, contained in a plea agreement, as to how a specific
sentencing issue should be resolved. On the facts of this case,
we hold that the district court did not commit reversible error
in accepting and acting upon a stipulated cross-reference within
the sentencing guidelines and, concomitantly, employing the
stipulated base offense level (BOL) produced by the use of that
cross-reference.
The appellant also raises other, more pedestrian
issues. As to those issues, we hold that the district court's
1 We have alluded to this issue in earlier cases, e.g.,
United States v. Ramirez, 252 F.3d 516, ___ (1st Cir. 2001) [No.
00-2274, slip op. at 3]; United States v. Hines, 196 F.3d 270,
272 (1st Cir. 1999); United States v. Springer, 28 F.3d 236, 237
(1st Cir. 1994), but we have yet to resolve it.
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refusal to depart downward from the guideline sentencing range
(GSR) did not constitute an appealable event; and that the
court's assessment of the appellant's role in the offense was
not clearly erroneous. Consequently, we affirm the substantial
prison sentence imposed below.
I. BACKGROUND
Defendant-appellant Patricia A. Teeter is a forty-
something-year-old woman whose story, insofar as relevant here,
reflects misplaced affection, terrible judgment, and the
gruesome depths of man's inhumanity to man. We recount the tale
at some length.
The appellant's troubles began when she forged a close
friendship with Steven Brown despite warnings from friends that
Brown had a propensity for violence. On March 22, 1999, a
matrimonial court found that Brown had physically abused his
estranged wife, Deborah, and the couple's minor children. The
court dealt Brown a series of heavy blows: it awarded custody
to Deborah, sanctioned her departure from New York, and ordered
Brown to refrain from any contact either with her or the
children. Brown told the appellant of the court's decree,
leaving no doubt about his perturbation.
On March 27, Brown asked the appellant to accompany him
on a "vacation" trip to Maine (during which he would retrieve
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his dog from Deborah). Although the appellant knew that Brown
had threatened violence against Deborah if he lost custody of
his offspring, she nonetheless agreed to the excursion. She
then watched Brown pack her car with a small arsenal, including
an SKS assault rifle, a .20 gauge shotgun, ammunition for the
weapons, and a pair of knives. Brown also stowed duct tape,
rope, and two hand-held radios aboard the vehicle.
The "vacationers" departed from New York early the next
morning. Once in New Hampshire, they temporarily abandoned the
appellant's car, rented another vehicle, and proceeded to
Lebanon, Maine. They eventually located the trailer occupied by
Deborah, her children, her brother, her father, and her new
swain. The new arrivals spent the afternoon and evening spying
on the group while Brown formulated a plan for Deborah's
abduction.
That night, Brown instructed the appellant to approach
the trailer and attempt to lure one of the male occupants
outside by claiming (falsely) that she was having car trouble.
Brown told the appellant that if she succeeded, he would then
incapacitate the good Samaritan. Following Brown's script, the
appellant inveigled Deborah's brother, Donald Wood, Jr., to come
outside. Brown hit him over the head with a piece of lead pipe
as he approached the rental car. The blow made an "eerie" sound
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that the appellant later said she would never forget. Brown
then dragged Wood into the woods — out of the appellant's sight
— and stabbed him twice. As matters turned out, this last bit
of mayhem was totally unnecessary, inasmuch as an autopsy later
revealed that the blow to the head was fatal.
At Brown's request, the appellant returned to the
trailer and, telling the same apocryphal tale, convinced
Deborah's consort, Chris Brouillard, to inspect the car. When
Brouillard approached, Brown forced him to the ground,
questioned him about his relationship with Deborah, struck him
with the pipe, dragged him into the copse, and stabbed him three
times.
Not content with two murders, Brown instructed the
appellant to fetch yet another victim from the trailer.
Although the appellant attempted to comply, the third try did
not go according to the script. Deborah — her suspicions
aroused by the previous activity — insisted that she drive her
own truck to the spot where the appellant's vehicle ostensibly
had been stranded. As Deborah neared the rental car, she spied
Brown lurking in the woods and drove away at high speed. After
a short interval, she returned to the trailer. When she pulled
into the driveway, Brown forced her into the rental car at
gunpoint and drove to New Hampshire (with the appellant as an
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added passenger). The rental car was returned only after the
appellant had wiped it down to obliterate her fingerprints.
The trio proceeded in the appellant's automobile to a
motel in East Greenbush, New York. Acting on Brown's
instructions, the appellant rented two adjoining rooms (one for
herself, one for her fellow travelers). To prevent Deborah from
calling for help, Brown removed the telephone from his room and
gave it to the appellant. During the day, the appellant washed
Brown's bloodstained clothes and ran errands for him. While
away from the motel, she called a friend who informed her that
Wood and Brouillard were dead, and that the police had mounted
a manhunt for Brown. The appellant made no attempt either to
flee or to contact the authorities. When the police raided the
motel the next morning, she vainly attempted to warn Brown by
giving a prearranged signal.
Following her arrest, the appellant faced a plethora
of federal and state charges. With respect to the federal
charges, she eventually entered into a plea agreement and
admitted her guilt as to one count of conspiracy, two counts
anent the use of a firearm in connection with a crime of
violence, two counts of aiding and abetting interstate domestic
violence, one count of aiding and abetting interstate stalking,
and one count of aiding and abetting the interstate violation of
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a protection order. 18 U.S.C. §§ 2, 371, 924(b)-(c), 2261(a),
2261A, 2262(a)-(1). The appellant also agreed not to contest
certain of the state charges.2 In return, the United States
agreed to dismiss three other counts, including one for
kidnapping. The parties stipulated, for federal sentencing
purposes, to a BOL of 43 (a figure derived by cross-reference to
the first-degree murder guideline, USSG §2A1.1). Finally, the
appellant waived her right to appeal any sentence imposed by the
district court.
The court convened a change-of-plea hearing on January
19, 2000. At that session, the court queried the appellant as
to her overall understanding of the plea agreement, confirmed
that no unexpressed promises had been made to her, and
determined that she was changing her plea voluntarily. However,
the court neglected to mention the waiver of appellate rights
contained in the plea agreement. Instead, it told the
appellant, without qualification and without any demurrer from
the prosecutor, that she would have a right to appeal any
sentence imposed.
2
In line with this aspect of the agreement, the appellant
eventually pled guilty in a Maine state court to two counts of
felony murder and one count of kidnapping. She received a
twenty-year incarcerative sentence, to be served concurrently
with the sentence previously imposed by the federal district
court.
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At the disposition hearing (which stretched over
several days), the appellant asseverated that notwithstanding
the terms of her plea agreement, the district court should
renounce the suggested cross-reference and recalculate her BOL.
As a fallback, she argued that even if the cross-reference
endured, she was entitled to a downward departure because she
had never intended that Wood or Brouillard perish. Lastly, she
sought a role-in-the-offense adjustment on the ground that she
was a minimal (or, at most, minor) participant in the criminal
activity.
The sentencing court rejected each and all of these
importunings. The court cross-referenced to the first-degree
murder guideline to reach a BOL of 43, reduced the offense level
to 40 because the appellant had both accepted responsibility for
her actions and cooperated with the authorities, see USSG
§3E1.1, and used that figure in calculating her GSR (eschewing
any role-in-the-offense discount). Given the absence of any
significant criminal history, these computations yielded a GSR
of 292-365 months. The court sentenced the appellant at the
bottom of that range but added a mandatory consecutive sentence
of 60 months on the firearm counts. The court then advised the
appellant, without tailoring its comments to the contours of the
plea-agreement waiver of appeal, "that you have a right to
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appeal this sentence if you wish to do so." The prosecutor did
not attempt to correct this apparent misstatement.
This timely appeal ensued. In it, the appellant seeks
to revisit the issues that she unsuccessfully advanced at the
disposition hearing. Before discussing that proffer, however,
we first must confront the government's contention that this
appeal cannot go forward because Teeter should be held to the
terms of the waiver embedded in her plea agreement.
II. PRESENTENCE WAIVERS OF APPELLATE RIGHTS
We divide this portion of our opinion into three
segments. First, we discuss the validity in general of
presentence waivers of appellate rights. Next, we explore the
specific criteria and conditions that must be met in order for
such waivers to be effective, as well as the general power of
appellate courts to override such waivers in the interests of
justice. Finally, we assay the waiver at issue here.
A. Presentence Waivers of Appellate Rights: An Overview.
The basic argument against presentence waivers of
appellate rights is that such waivers are anticipatory: at the
time the defendant signs the plea agreement, she does not have
a clue as to the nature and magnitude of the sentencing errors
that may be visited upon her. Her waiver typically embraces all
determinations later made by the sentencing court — some of
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which may never have occurred either to her or to the
government, and some of which may be quite different than either
thought possible. In a certain sense, then — though not in the
usual criminal law sense — a waiver of the right to appeal
cannot be "knowing." In the appellant's view, this is a
fundamental defect — and one that distinguishes presentence
waivers of appellate rights from other waivers contained in a
plea agreement.
We are not unsympathetic to this argument. Withal,
three reasons counsel persuasively in favor of a rule that
accords general validity to presentence waivers of appellate
rights.3 First, waivers are not inherently suspect in criminal
cases any more than in civil cases. Criminal defendants
typically may waive their rights, as long as they do so
3We note at the outset that the sort of waiver we are
discussing differs from the waiver disapproved in Worcester v.
Commissioner, 370 F.2d 713 (1st Cir. 1966). There, the
Commissioner sought to estop the taxpayer by reference to a
related criminal case. We rejected that effort, finding the
criminal proceeding to have been tainted because the court had
pressured the taxpayer-defendant into waiving his right to
appeal in exchange for a lighter sentence. Id. at 718
(explaining that "[t]he court was without right to bargain thus
with the defendant, or to put a price on an appeal"). We
expressed concern that, if we permitted this sort of plea
bargaining, a sentencing court might abuse its power in order to
avoid appellate review, and the defendant, in an unequal
bargaining position, would have little choice but to go along.
Id. When, as now, the agreement is between the prosecution and
the defense (and, thus, subject to the independent supervision
of the trial court), the Worcester rationale is inapposite.
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voluntarily and with knowledge of the general nature and
consequences of the waiver. See Adams v. United States, 317
U.S. 269, 275 (1942) (discussing waiver of right to jury trial);
Johnson v. Zerbst, 304 U.S. 458, 464-67 (1938) (discussing
waiver of right to counsel). Indeed, guilty pleas are a staple
of our criminal justice system — and a guilty plea inevitably
entails a waiver of numerous rights. Although many of these
waivers pertain to future events — a waiver of the right to
trial by jury is a good example — their prospective nature has
never been thought to place them off limits or to render the
defendant's act "unknowing."
Moreover, the idea of permitting presentence waivers
of appellate rights seems relatively tame because the right to
appeal in a criminal case is not of constitutional magnitude.
See Jones v. Barnes, 463 U.S. 745, 751 (1983). Since the
Supreme Court repeatedly has ruled that a defendant may waive
constitutional rights as part of a plea agreement, e.g., Town of
Newton v. Rumery, 480 U.S. 386, 393 (1987); Brady v. United
States, 397 U.S. 742, 752-53 (1970), it follows logically that
a defendant ought to be able to waive rights that are purely
creatures of statute.
The Criminal Rules themselves lend support to this
conclusion. Effective December 1, 1999, the Supreme Court, with
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the approval of Congress, amended the Criminal Rules to provide
specifically that, during a change-of-plea hearing, the
presiding judge "must address the defendant personally in open
court and inform the defendant of, and determine that the
defendant understands . . . the terms of any provision in a plea
agreement waiving the right to appeal." Fed. R. Crim. P.
11(c)(6). While the advisory committee, in its explanatory
note, made clear that it took "no position on the underlying
validity of such waivers," it recognized that they had become an
accepted part of federal plea-agreement practice. See id.,
advisory committee notes. This widespread acceptance of the
practice is itself a clear indication that those who deal most
frequently with criminal cases have come to conclude that
presentence waivers of appellate rights are not forbidden.
Considerations of public policy furnish a second pillar
on which to rest a holding that breathes vitality into
presentence waivers of appellate rights. Since criminal
defendants are entitled to appeal convictions and sentences as
a matter of statutory right, see 18 U.S.C. § 3742; 28 U.S.C. §
1291, a defendant is unlikely to waive this right unless she
believes that some feature of a proffered plea agreement makes
it worth her while to do so. Allowing a criminal defendant to
agree to a waiver of appeal gives her an additional bargaining
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chip in negotiations with the prosecution; she may, for example,
be able to exchange this waiver for the government's assent to
the dismissal of other charges. This benefit is very real; in
some cases the government, without such a waiver, might not be
willing to plea-bargain at all.
The benefit to the prosecution — conservation of
resources — is obvious.4 In the same vein, presentence waivers
of appellate rights also husband judicial resources by
discouraging groundless sentencing appeals. With court-
appointed counsel freely available and nothing to lose by
trying, a defendant, unfettered by a waiver agreement, is quite
likely to appeal on a wing and a prayer. Reducing the number of
baseless appeals promotes both efficiency and finality in the
adjudication of criminal cases.5
These policy considerations properly factor into our
assessment of presentence waivers of appellate rights. Cf. New
4
Less obvious, perhaps, is the protection against bait-and-
switch tactics on the part of a defendant who makes concessions
to the government and then seeks to keep what she got and
withdraw what she gave. In the last analysis, it is up to the
courts to keep this balance steady and true.
5
Finality is an especially important consideration in
society's attempt to administer a zetetick criminal justice
system. Its virtues have been extolled elsewhere, e.g., Daniels
v. United States, 121 S. Ct. 1578, 1582 (2001); Lackawanna
County Dist. Atty. v. Cross, 121 S. Ct. 1567, 1573-74 (2001),
and it would be pleonastic to rehearse them here.
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York v. Hill, 528 U.S. 110, 117 (2000) ("We allow waiver of
numerous constitutional protections for criminal defendants that
also serve broader social interests."). They indicate that the
government, the defendant, and the judicial system all have
something to gain from presentence waivers of appellate rights.
This makes the device attractive: broadly speaking, plea
agreements are in the best interests of the parties and the
criminal justice system, United States v. Penta, 898 F.2d 815,
817 (1st Cir. 1990); Correale v. United States, 479 F.2d 944,
947 (1st Cir. 1973), and the more options that both sides have,
the more likely it is that they will reach an accord.
The third reason supporting a rule that accords
validity to presentence waivers of appellate rights is the sheer
weight of authority. On a close question, where no obviously
right or wrong answer exists, courts of appeals should strive to
avoid creating needless conflicts. In this instance,
presentence waivers of appellate rights have been accepted by
all nine of the circuit courts which have passed upon their
validity. See United States v. Hernandez, 242 F.3d 110, 113 (2d
Cir. 2001); United States v. Fleming, 239 F.3d 761, 763-64 (6th
Cir. 2001); United States v. Jemison, 237 F.3d 911, 917 (7th
Cir. 2001); United States v. Nguyen, 235 F.3d 1179, 1182 (9th
Cir. 2000); United States v. Cuevas-Andrade, 232 F.3d 440, 446
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(5th Cir. 2000); United States v. Brown, 232 F.3d 399, 403 (4th
Cir. 2000); United States v. Black, 201 F.3d 1296, 1300 (10th
Cir. 2000); United States v. Howle, 166 F.3d 1166, 1168 (11th
Cir. 1999); United States v. Michelsen, 141 F.3d 867, 871 (8th
Cir. 1998). While these courts set varying boundaries, they all
agree that, under ordinary circumstances, a knowing, voluntary
waiver of the right to appeal from a sentence, contained in a
plea agreement, ought to be enforced.6 Absent some convincing
countervailing argument — and we are aware of none — we are
reluctant to brush aside this collective wisdom. Thus, this
unanimity strongly suggests that such waivers, if appropriately
drafted, asserted to, and explained, should be honored.
We will not paint the lily. Given the general
availability of waivers in criminal cases, the public policy
gains to be reaped by allowing plea-agreement waivers of
appellate rights, and the impressive body of precedent
6 Although the courts of appeals have been consentient, we
note that individual judges have demurred. E.g., United States
v. Melancon, 972 F.2d 566, 570-80 (5th Cir. 1992) (Parker, J.,
concurring); United States v. Perez, 46 F. Supp. 2d 59, 64-72
(D. Mass. 1999); United States v. Johnson, 992 F. Supp. 437,
438-40 (D.D.C. 1997); United States v. Raynor, 989 F. Supp. 43,
43-49 (D.D.C. 1997). Some commentators also have argued against
the validity of presentence waivers of appellate rights. E.g.,
Jack W. Campbell IV & Gregory A. Castanias, Sentencing-Appeal
Waivers: Recent Decisions Open the Door to Reinvigorated
Challenges, The Champion, May 2000, at 34.
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sanctioning such waivers, we hold that presentence waivers of
appellate rights are valid in theory.
B. Criteria and Conditions.
We do not lend our imprimatur to such waivers
indiscriminately. There are obvious dangers attendant to the
practice. Sentences ultimately are imposed by the district
courts, which must make sentencing determinations under
controlling law. When a district court errs in sentencing, that
error may be manifest on the record. Thus, in addition to
concerns about fairness to the defendant, an institutional
interest – public confidence in the judicial system – may be
adversely affected if such errors go uncorrected. To ameliorate
these risks, we deem it appropriate that such waivers meet
stringent criteria. Even then, we think that limits must be set
on the effect that can be given to them. It is to those
criteria and conditions that we now turn.
The baseline for any waiver of rights is that the
defendant enter into it knowingly and voluntarily. Rumery, 480
U.S. at 394. In the plea-bargain context, the text of the plea
agreement and the content of the change-of-plea colloquy are
critically important to a determination of knowledge and
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volition. See, e.g., United States v. Parrilla-Tirado, 22 F.3d
368, 373 (1st Cir. 1994) (examining both the text of the plea
agreement and the change-of-plea colloquy to determine whether
a guilty plea was entered knowingly and voluntarily). Like
other courts, e.g., Jemison, 237 F.3d at 916-18; Nguyen, 235
F.3d at 1182-83, we will consult those sources in determining
the validity of a particular presentence waiver of appellate
rights.
We look first to confirm that the written plea
agreement signed by the defendant contains a clear statement
elucidating the waiver and delineating its scope. E.g.,
Fleming, 239 F.3d at 762; Brown, 232 F.3d at 401. Mindful that
Rule 11(c)(6), quoted supra at 11, specifically recognizes the
importance of the change-of-plea hearing to any waiver of
appellate rights, we next will examine the transcript of that
hearing. The focus of this inquiry is to ascertain whether the
court's interrogation suffices to ensure that the defendant
freely and intelligently agreed to waive her right to appeal her
forthcoming sentence.
In respect to presentence waivers of appellate rights,
several courts had held, without reference to the neoteric
provisions of Rule 11(c)(6), that the district judge must
question the defendant specifically about her understanding of
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the waiver provision and adequately inform her of its
ramifications. E.g., Jemison, 237 F.3d at 917-18; Brown, 232
F.3d at 401-02, 405-06. While some courts previously had held
waivers of appellate rights to be valid despite the absence of
specific questioning during the change-of-plea colloquy, e.g.,
Michelsen, 141 F.3d at 871-72; United States v. Wenger, 58 F.3d
280, 282 (7th Cir. 1995), these decisions antedate the adoption
of Rule 11(c)(6). That rule — which was in force when Teeter
changed her plea — alters the decisional calculus. In
explicating the rationale for adopting the rule, the advisory
committee made it pellucid that such an inquiry, properly
performed, offers considerable assurance of the defendant's
knowledge and volition. See Fed. R. Crim. P. 11(c)(6), advisory
committee notes. Consequently, we hold that the district court
must inquire specifically at the change-of-the-plea hearing into
any waiver of appellate rights.7 Neglecting this duty will
constitute error and may serve to invalidate the waiver,
depending upon what the record shows as to the defendants'
knowledge (that is, whether the defendant, notwithstanding the
7
We refrain from prescribing any mandatory language for such
an inquiry because the circumstances will vary from case to
case, from defendant to defendant, and from plea agreement to
plea agreement. We caution only that the court's interrogation
should be specific enough to confirm the defendant's
understanding of the waiver and her acquiescence in the
relinquishment of rights that it betokens.
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absence of a particularized inquiry, understood the full
significance of the waiver) and the existence vel non of
prejudice. See United States v. Bushert, 997 F.2d 1343, 1351-52
(11th Cir. 1993); see also Fed. R. Crim. P. 11(h).
Of course, courts ought to strive for consistency.
While not necessarily a fatal error, a court can compromise an
otherwise adequate change-of-plea colloquy by sending
contradictory messages to the defendant. One potential source
of confusion looms when the trial court, acting pursuant to
Federal Rule of Criminal Procedure 32(c)(5),8 tells the defendant
at sentencing about her right to appeal. If a presentence
waiver of appellate rights is in place, the court should be
especially careful in its choice of words, taking pains to
explain to the defendant that her right to appeal is
circumscribed by her preexisting waiver.
One court has held that a blanket assurance about the
right of appeal, delivered when sentence is pronounced, cancels
8The rule provides in pertinent part:
After imposing sentence in any case, the
court must advise the defendant of any right
to appeal the sentence, and of the right of
a person who is unable to pay the cost of an
appeal to apply for leave to appeal in forma
pauperis.
Fed. R. Crim. P. 32(c)(5).
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a preexisting waiver of appellate rights. United States v.
Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995) (holding that the
sentencing court's statement created "a reasonable expectation"
on the defendant's part that he could appeal his sentence,
notwithstanding the preexisting waiver). Other courts have
disagreed, e.g., United States v. Atterberry, 144 F.3d 1299,
1301 (10th Cir. 1998); Michelsen, 141 F.3d at 872, and so do we.
While broad assurances to a defendant who has waived her
appellate rights (e.g., "you have a right to appeal your
sentence") are to be avoided — they muddy the waters and tend to
instill false hope — they do not effect a per se nullification
of a plea-agreement waiver of appellate rights. Whether such
assurances may constitute reversible error in particular cases,
and if so when, are matters that may be left for another day.
We add a coda. We have endeavored to provide general
guidance to the district courts and the bar concerning plea-
agreement waivers of appellate rights. We caution, however,
that because such waivers are made before any manifestation of
sentencing error emerges, appellate courts must remain free to
grant relief from them in egregious cases. When all is said and
done, such waivers are meant to bring finality to proceedings
conducted in the ordinary course, not to leave acquiescent
defendants totally exposed to future vagaries (however harsh,
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unfair, or unforeseeable). Our basic premise, therefore, is
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. 9 As a subset of this premise, we
think that the same flexibility ought to pertain when the
district court plainly errs in sentencing.10
In sum, we conclude that plea-agreement waivers of the
right to appeal from imposed sentences are presumptively valid
(if knowing and voluntary), but are subject to a general
exception under which the court of appeals retains inherent
power to relieve the defendant of the waiver, albeit on terms
that are just to the government, where a miscarriage of justice
occurs. In charting this course, we recognize that the term
"miscarriage of justice" is more a concept than a constant.
9
This category is infinitely variable, but, by way of
illustration, we would include within it situations in which
appellants claim that their sentences were based on
constitutionally impermissible factors (say, race or ethnicity),
Brown, 232 F.3d at 403; United States v. Schmidt, 47 F.3d 188,
190 (7th Cir. 1995), or that the plea proceedings were tainted
by ineffective assistance of counsel, Hernandez, 242 F.3d at
113-14; Jemison, 237 F.3d at 916 n.8.
10
To cite a few examples, we do not think that a waiver
should be construed to bar an appeal if the trial court imposes
a sentence exceeding the maximum penalty permitted by law,
Black, 201 F.3d at 1301; United States v. Attar, 38 F.3d 727,
729-32 (4th Cir. 1994), or one that violates a material term of
the plea agreement, Michelsen, 141 F.3d at 872; United States v.
Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990).
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Nevertheless, some of the considerations come readily to mind:
the clarity of the error, its gravity, its character (e.g.,
whether it concerns a fact issue, a sentencing guideline, or a
statutory maximum), the impact of the error on the defendant,
the impact of correcting the error on the government, and the
extent to which the defendant acquiesced in the result. Other
considerations doubtless will suggest themselves in specific
cases.
We recognize, too, that this general reservation will,
at least at the outset, lessen what the government sees as the
prime benefit of its bargain: the automatic cutoff of debate
and the opportunity to get appeals dismissed on motion.
Realistically, however, the outlook is not entirely bleak.
While open-ended, the general reservation that we envision will
be applied sparingly and without undue generosity. Motions to
dismiss will still be entertained and, by appealing after
promising not to do so, defendants will risk giving the
government an option to disclaim a plea agreement, if it wishes
to do so.
We acknowledge that this approach represents a break
with precedent. Although several of our sister circuits have
made clear, in approving presentence waivers, that there will be
only narrowly circumscribed exceptions, e.g., Jemison, 237 F.3d
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at 911; Brown, 232 F.3d at 403; Michelsen, 141 F.3d at 872, we
do not feel comfortable adopting any rigid taxonomy without more
experience. Relief from waivers has traditionally occurred on
a fact-specific basis. We believe that the general reservation
which we adopt today is sufficiently broad to capture any truly
deserving case but demanding enough to prevent defendants who
have agreed to waive their right to appeal from successfully
pursuing garden-variety claims of error.
C. Waiver in the Instant Case.
Having constructed a framework for determining when
waivers of appellate rights will be enforced, we ponder the
waiver in this case. The following language appears in
paragraph five of the plea agreement:
The Defendant is aware that 18 U.S.C. §
3742(a) affords a defendant the right to
appeal the sentence imposed. Knowing that,
in exchange for the Government's concessions
made herein, the Defendant waives to the
full extent of the law any right to appeal .
. . the conviction and sentence, or the
manner in which it was determined . . . .
This explicit text is followed by a statement acknowledging the
appellant's voluntary acceptance of the entire plea agreement
and confirming that she has read and understood it. The
appellant and her attorney signed the document immediately
beneath this acknowledgment. These desiderata furnish prima
facie evidence of the appellant's knowledge and volition.
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What occurred next is somewhat more problematic.
During the change-of-plea colloquy, the district court
questioned the appellant concerning her overall understanding
of, and acquiescence in, the terms of the plea agreement, but
did not direct her attention to the waiver provision. As we
have said, the validity of a waiver of appellate rights depends
on whether the waiver was knowingly and voluntarily undertaken.
Here, the court — hampered, no doubt, by the newness of Rule
11(c)(6) and the consequent lack of any precedential guidance —
neither directed the appellant's attention to the waiver
provision nor discussed it with her. Compounding that problem,
the court, near the end of the Rule 11 colloquy, asked the
appellant: "[D]o you also understand that both you and the
government will have a right to appeal any sentence I impose?"
This unqualified query — to which the prosecutor (not the same
person who appears as counsel for the government in this court)
inexplicably failed to take exception — drew an affirmative
response from the appellant. The premise of this question
directly contradicted the tenor of the waiver provision.
Given the court's failure to make inquiry into the
waiver, its unfortunate contradiction of the waiver's terms, and
-25-
the lack of any correction, then or thereafter,11 we cannot say
with the requisite assurance that the appellant's surrender of
her appellate rights was sufficiently informed. Accordingly, we
find that the district court transgressed Rule 11(c)(6). The
government has not argued that this error was other than
prejudicial. We think that the proper remedy, given the
circumstances, is to sever the waiver of appellate rights from
the remainder of the plea agreement, allowing the other
provisions to remain in force. See Bushert, 997 F.2d at 1353-
54. Thus, we permit Teeter's appeal to proceed.
III. THE MERITS
The appellant raises three substantive issues on
appeal. First, she argues that the lower court abused its
discretion in accepting the stipulated cross-reference to the
first-degree murder guideline. Second, she asks us to reverse
the court's decision not to depart downward. Finally, she
complains that the court committed clear error when evaluating
11
Indeed, immediately following the imposition of sentence,
the court exacerbated the problem, stating: "I must advise you,
Ms. Teeter, that you have a right to appeal this sentence if you
wish to do so. Do you understand that?" Eliciting an
affirmative response, the court proceeded to explain, in
considerable detail, the requirements for filing an appeal. At
no time did the court mention the limitations on the right to
appeal ostensibly imposed by the plea agreement. Throughout,
the prosecutor stood mute.
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her role in the offenses of conviction. We address these claims
sequentially.
A. The Cross-Reference.
When sentences are imposed under the federal sentencing
guidelines, the process encompasses certain mechanical aspects.
First, the district court must determine the section of the
guidelines that applies to the offense(s) of conviction. The
court then must look to that guideline section to determine the
BOL. This is not as simple as it sounds because some guideline
provisions are not self-contained; they require (or, at least,
suggest) cross-referencing to other guideline sections to help
determine the BOL.
In this case, the sentencing court determined that the
appellant's conduct fell, in pertinent part, within the purview
of USSG §2A6.2 ("Stalking or Domestic Violence"). This
determination was fully consistent with the plea agreement, and
the appellant does not contest it. Moving forward, the court
noted that section 2A6.2(c) contains a cross-reference provision
which reads as follows: "If the offense involved conduct
covered by another offense guideline from Chapter Two, Part A
(Offenses Against the Person), apply that offense guideline, if
the resulting offense level is greater than that determined
above." The court found that the pertinent offenses of
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conviction fell within the scope of this language and cross-
referenced to the first-degree murder guideline (USSG §2A1.1).
Because that guideline yielded a higher BOL (43), the court
applied it.
The appellant concedes that, in the plea agreement, she
stipulated both to this very cross-reference and to the
resultant BOL (43). She nonetheless asseverates that the
sentencing court erred in embracing this stipulation. Here,
however, the appellant stipulated to the facts underlying the
cross-reference, and those facts render the sentencing court's
use of the cross-reference plausible. No more is exigible to
warrant rejection of the appellant's asseveration.
We have analogized plea agreements to contracts,
binding upon the prosecution and the defense alike. E.g.,
United States v. Ortiz-Santiago, 211 F.3d 146, 151 (1st Cir.
2000). We have been scrupulous in holding the government to the
due performance of its obligations thereunder, e.g., United
States v. Clark, 55 F.3d 9, 12-13 (1st Cir. 1995), and
defendants cannot expect to be treated less fastidiously.
Consequently, defendants ordinarily should be held to plea-
agreement terms that they knowingly and voluntarily accept. See
United States v. Alegria, 192 F.3d 179, 185-86 (1st Cir. 1999).
But there are caveats. Stipulations about legal issues, for
-28-
example, are problematic. There is language in a number of
cases indicating (correctly, we think) that such stipulations
normally are not binding on a court. E.g., Estate of Sanford v.
Commissioner, 308 U.S. 39, 51 (1939); Weston v. Wash. Metro.
Area Transit Auth., 78 F.3d 682, 685 (D.C. Cir. 1996); Gunn v.
United States, 283 F.2d 358, 364 (8th Cir. 1960). Even when
stipulations concern facts rather than law, courts traditionally
retain the power to relieve parties from them on terms that are
just. E.g., TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928
(1st Cir. 1995).
Of course, except where the parties have entered into
a binding plea agreement under the aegis of Federal Rule of
Criminal Procedure 11(e)(1)(C), the stipulations contained in
the agreement, even if factual in nature, do not tie the
district court's hands. See United States v. Saxena, 229 F.3d
1, 4-8 (1st Cir. 2000); Ortiz-Santiago, 211 F.3d at 149 n.2.
That the court has the power to deviate from such stipulations,
however, does not obligate the court to do so. Should the court
decide to accept and act upon factual stipulations for
sentencing purposes, the parties usually will be firmly bound.12
12
Conceivably, there may be a rare case in which relief from
such a stipulation would be justified to avoid a miscarriage of
justice or to correct a mutual mistake. But such cases will be
few and far between, and the case at hand is not one of them.
-29-
This general rule will apply when, for example, a defendant
stipulates to a matter of fact or to the applicability of a
sentencing guideline (the legal meaning of which is pellucid) to
the unique facts of her case. After all, the defendant knows
what she has done, and has little cause for complaint if the
district court takes her at her word.
It is much more difficult to justify binding effect for
a stipulation that purports to resolve a general issue of law
(or one that turns out to do so without acknowledgment). To
cite an extreme example, it is difficult to see why a district
court that misreads the effective date of a statute bearing on
a sentencing determination should automatically be insulated
from appellate review because the parties stipulated to the
(wrong) effective date. That leaves stipulations as to mixed
questions of fact and law. As to such stipulations,
generalizations are risky business. The answer, in a particular
case, may depend on the extent to which the mixed question is
fact-dominated, cf. In re Extradition of Howard, 996 F.2d 1320,
1328 (1st Cir. 1993), or the extent to which the known facts
(whether found by the court or stipulated by the parties) make
a given answer to the mixed question plausible.
This case involves a combination of these principles.
The appellant stipulated to the BOL – 43 – and to the propriety
-30-
of using the cross-reference to USSG §2A1.1 found in USSG §2A6.2
to reach that BOL. To that extent, her challenge to the
stipulation is based in law, and thus arguably subject to
plenary review. But there is more: in the course of the
proceedings below, the appellant pled guilty to counts five,
six, seven, and ten (among others). These counts charged her
with aiding and abetting interstate domestic violence,
interstate stalking, and interstate violation of a protection
order. 18 U.S.C. §§ 2, 2261(a)(1)-(2), 2261A, 2262(a)(1). She
admitted to certain facts through her plea agreement, the
change-of-plea colloquy, and at sentencing. Those factual
admissions are not now open to challenge — and they suffice to
justify the sentencing court's use of the stipulated cross-
reference. We explain briefly.
The applicable sentencing guideline in this case is
USSG §2A6.2 (Stalking or Domestic Violence). As said, this
section contains a cross-reference to the first-degree murder
guideline, USSG §2A1.1. This cross-reference arises by virtue
of USSG §1B1.3(a)(1)(B) (Relevant Conduct), which pertinently
provides that a defendant's BOL shall be determined "in the case
of jointly undertaken criminal activity [on the basis of] all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity, that
-31-
occurred during the commission of the offense of conviction."
In the district court, the appellant admitted to crossing state
lines to commit illegal acts against Deborah Brown, a
stipulation of fact unchallenged on appeal. Additionally, she
admitted to seeing and hearing Brown's vicious attack on Wood,
yet nonetheless luring the next victim, Brouillard, into a place
of maximum danger. Given these conceded facts, the murder of
the second victim, at the very least, was "a reasonably
foreseeable act" in furtherance of the offenses of conviction.
Consequently, the district court had a plausible factual basis
for cross-referencing to the first-degree murder guideline (as
agreed by the parties) and employing a BOL of 43.
On this point, we find United States v. Robinson, 14
F.3d 1200 (7th Cir. 1994), instructive. There, the defendant
entered into a plea agreement in which he admitted to
distributing specific quantities of drugs. The district court
sentenced him in line with the stipulation. The defendant
nonetheless appealed, claiming that the court erred by failing
to make an independent drug-quantity determination. Id. at
1206. The Seventh Circuit quickly shut down this appeal:
Robinson pled guilty, and was sentenced
based on what he admitted in the plea
agreement, at the guideline level agreed
upon in the plea agreement. . . . Robinson
got what he bargained for, he waived any
right to challenge the contents of the plea
-32-
agreement when he signed it, and he has no
basis to challenge it now.
Id. The same can be said for Teeter. Having admitted the
underlying facts that supported the sentencing court's resort to
the stipulated cross-reference, she is unable to challenge that
decision on appeal.
B. The Downward Departure.
The appellant's fallback position is that, even if the
district court appropriately cross-referenced USSG §2A1.1, it
nonetheless erred in failing to depart downward. This argument
stems from the fact that the heartland of the first-degree
murder guideline involves those who knowingly and intentionally
participate in an act of homicide. If, however, "the defendant
did not cause the [victim's] death intentionally or knowingly,"
the Sentencing Commission has raised the possibility that "a
downward departure may be warranted." USSG §2A1.1, comment.
(n.1). Such a departure was advisable here, the appellant
suggests, because she neither knowingly nor intentionally caused
the deaths of Wood and Brouillard.
We lack jurisdiction to consider this argument. For
the most part, departure decisions are discretionary, and a
defendant cannot appeal from the sentencing court's refusal to
grant a downward departure. Ortiz-Santiago, 211 F.3d at 148;
United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994).
-33-
Although there is a narrow window of opportunity for cases in
which the district court misapprehends its authority to depart,
Pierro, 32 F.3d at 619; United States v. Amparo, 961 F.2d 288,
292 (1st Cir. 1992), this case falls within the general rule,
not the long-odds exception to it.
Despite the appellant's efforts at creative
characterization, this assignment of error involves a
discretionary departure decision, pure and simple. Application
Note 1 specifically refers to the possibility of a "downward
departure" and leaves that possibility squarely in the hands of
the sentencing court. Hence, we lack jurisdiction to review the
court's refusal to invoke Application Note 1 unless there is
some reason to believe that the court misunderstood its options.
United States v. Shea, 211 F.3d 658, 674 (1st Cir. 2000).
There is absolutely no basis for any such belief here:
the appellant points to nothing that would indicate that the
court mistook its authority to depart, and the record makes
manifest that Judge Carter knew he had the power to depart but
deliberately chose not to do so. Indeed, the judge stated, not
once but twice, that he was rejecting the appellant's request
for a downward departure based on the facts of record. Under
these circumstances, we are foreclosed from second-guessing the
court's discretionary decision not to depart from the GSR.
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C. The Role-in-the-Offense Adjustment.
The final arrow in the appellant's quiver also misses
the mark. She asserts that the district court incorrectly
failed to reduce her offense level given her unimportant role in
the crime spree. Absent a mistake of law — and we discern none
here — we review such factbound status determinations for clear
error. United States v. Garcia, 954 F.2d 12, 18 (1st Cir.
1992).
The appellant says that the lower court should have
classified her as a "minimal" or "minor" participant, and
decreased her offense level accordingly. A defendant who seeks
a downward role-in-the-offense adjustment must prove her
entitlement to it. See id. To qualify as a minimal participant
and obtain the concomitant four-level reduction, the appellant
would have to prove by a preponderance of the evidence that she
was, at most, a peripheral player in the criminal activity.
See, e.g., USSG §3B1.2, comment. (n.2) (giving, as an example of
a minimal participant, "someone who played no other role in a
very large drug smuggling operation than to offload part of a
single marihuana shipment"). To qualify as a minor participant
and obtain the concomitant two-level reduction, the appellant
would have to prove by a preponderance of the evidence that she
was "less culpable than most other participants." Id., comment.
-35-
(n.3). This means that she must be not only less culpable than
her cohorts in the particular criminal endeavor, but also less
culpable than the majority of those within the universe of
persons participating in similar crimes. See United States v.
Murphy, 193 F.3d 1, 9 (1st Cir. 1999); United States v. Ocasio,
914 F.2d 330, 333 (1st Cir. 1990).
Given the allocation of the burden of proof, a
defendant who seeks a downward role-in-the-offense adjustment
usually faces an uphill climb in the nisi prius court. The
deferential standard of review compounds the difficulty, so that
a defendant who fails to persuade at that level faces a much
steeper slope on appeal. "We have declared, with a regularity
bordering on the echolalic, that . . . battles over a
defendant's status . . . will almost always be won or lost in
the district court." United States v. Conley, 156 F.3d 78, 85
(1st Cir. 1998) (citations and internal quotation marks
omitted). This is such a case.
The court below determined that the appellant was
considerably more than a bit player in the unfolding tragedy.
This determination is amply rooted in the record. The appellant
facilitated Brown's travel plans; went with him to Maine; helped
him track down his prey; lured the first victim (Wood) from the
trailer to a locus where Brown could more easily get to him,
-36-
knowing that Brown had incapacitation in mind; put the second
victim (Brouillard) in harm's way after seeing Brown brutally
attack Wood; aided Brown in abducting and holding hostage his
estranged wife; maintained her allegiance even after receiving
irrefutable proof of the murders; and attempted to warn Brown
when the police arrived.
To be sure, the facts can be marshaled in such a way
as to put the appellant in a somewhat more sympathetic light.
The appellant's able counsel strives valiantly to transform the
case in this fashion: he claims that the appellant agreed only
to spend a romantic weekend holiday with her boyfriend in Maine,
and that what happened thereafter was largely beyond her
control. This spin does not carry the day, however, because the
sentencing court was fully entitled to draw a different, more
sinister, set of inferences from the largely undisputed facts.
See United States v. Santiago-Gonzalez, 66 F.3d 3, 7 (1st Cir.
1995); Garcia, 954 F.2d at 18. Accordingly, we uphold the
district court's eschewal of a downward role-in-the-offense
adjustment. See United States v. Ruiz, 905 F.2d 499, 508 (1st
Cir. 1990) (explaining that "where there is more than one
plausible view of the circumstances, the sentencing court's
choice among supportable alternatives cannot be clearly
erroneous").
-37-
IV. CONCLUSION
We need go no further. Although we afford the
appellant a full right of appeal notwithstanding the waiver of
appellate rights contained in her plea agreement, we reject each
and all of her claims of error. Her conviction and sentence
must, therefore, be
Affirmed.
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