United States v. De-La-Cruz-Castro

United States Court of Appeals
For the First Circuit

No. 00-2286

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

RAMON DE-LA-CRUZ CASTRO,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,
and Woodlock,* District Judge.

William M. Palmer for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney were on brief for appellee.

August 7, 2002

____________________________
*Of the District of Massachusetts, sitting by designation.
 LIPEZ, Circuit Judge. Ramon De-La-Cruz Castro (Cruz

Castro) appeals from the judgment entered by the district court

pursuant to a written plea agreement. Asserting that Cruz Castro

waived his right to appeal in the plea agreement, the government

asks us to dismiss the appeal. Cruz Castro argues that we should

disregard the waiver of appeal because it was not knowing and

voluntary, and that we should vacate his judgment of conviction

because of an oral agreement that he claims he made with the

prosecution. Cruz Castro also claims that he only assented to the

plea agreement because of the ineffective assistance of his
counsel.

On the basis of the record before us, we find that Cruz
Castro knowingly and voluntarily waived his right to appeal.
Hence, we enforce the waiver and dismiss the appeal in accord with

our precedent in United States v. Teeter, 257 F.3d 14 (1st Cir.

2001). We do not address the ineffective assistance of counsel
claim which, consistent with our usual practice, must be pursued in

a collateral proceeding.

I.

On April 29, 1998, a grand jury indicted Cruz Castro (and

two other defendants) for knowingly and intentionally possessing

with intent to distribute 959.3 kilograms of cocaine, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Although Cruz Castro

entered a plea of not guilty in May 1998, he moved for a change of

plea in December 1999, and entered a plea of guilty on January 4,

2000.

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 The plea agreement described the offense to which Cruz

Castro pled guilty and stated that he could be sentenced to a term

of imprisonment between ten years and life. However, it also
stated that he could qualify for a downward departure to eight

years if he complied with a "safety valve" provision by giving

information to the government. Most pertinently to this appeal,
the plea agreement contained the following language:

Defendant Ramon de la Cruz Castro hereby agrees that
if this Honorable Court accepts this Plea and
Cooperation Agreement and sentences him according to
its terms and conditions, defendant Ramon de la Cruz
Castro waives and surrenders his right to appeal the
judgment and sentence in this case.

Aware of this provision, the district court attempted to determine
at the change of plea hearing whether Cruz Castro understood its

scope and consequences. The district court first asked Cruz Castro

if he understood that he was giving up his right to appeal "all or
part" of his sentence, and he responded affirmatively. The

district court also asked Cruz Castro's counsel if he had explained

the plea agreement to his client in Spanish, and if he was

satisfied that Cruz Castro understood the plea agreement. Counsel

also responded affirmatively. Towards the end of the change of plea

hearing, the district court also stated to Cruz Castro that, "under

some circumstances you or the government may have a right to appeal

any sentence that the Court imposes."

At the conclusion of the change of plea hearing, the

district court accepted Cruz Castro's guilty plea. The plea

agreement indicated that Cruz Castro would only be eligible for a

downward departure (from 120 to 96 months of imprisonment) if he

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complied with a safety valve provision by the time of his

sentencing hearing:

Should the Defendant meet all of the requirements
of the safety valve provisions of guidelines
section 5C1.2, including that . . . no later than
the time of the sentencing hearing, the defendant
has truthfully provided to the Government all
information and evidence the defendant has
concerning the offense or offenses that were part
of the same course of conduct or of a common scheme
or plan, then the Defendant would be entitled to a
further TWO (2) level reduction in his base offense
level [in which case] the parties agree to a term
of ninety-six (96) months [as] the appropriate
sentence for disposition of this case.

On September 15, 2000, the district court held a

sentencing hearing. There the court explored whether Cruz Castro

had complied with the safety-valve provision. The court learned

that Cruz Castro, intimidated by the "code of silence" prevailing
at his prison, would not give the government any information about

his or related criminal activities. However, he still claimed that

he should receive the benefit of a downward departure. At the
allocution phase of the sentencing hearing, the appellant told the

sentencing court that Assistant United States Attorney Mark Irish,

the prosecutor who had represented the government in connection

with the change of plea but who had since left the office and

consequently did not appear at the sentencing, orally modified the

plea agreement between him and the government by telling him off

the record that he would receive a sentence of 96 months without

having to speak with the government about his crime. The defendant

went into some detail about the circumstances of the alleged

modification:

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 [Before the change of plea hearing] I asked counsel
here and the prosecutor who at the time I believe
was Mark Irish, he told me that he would guarantee
that I would get 96 months, and that I didn't have
to say anything, that I didn't have to speak at
all . . . and . . . I told him I don't have to say
anything else, because if I have to, then I won't
sign. And with my counsel present and the
prosecutor present they both said that I didn't
have to say anything [and that] this was not a
trick . . . and that it was clear that if I didn't
get the 96 months then I could go forward with an
appeal or that I would.

Cruz Castro stated that his attorney reiterated this assurance when

he visited him in prison.

Cruz Castro also stated that he was disturbed to learn

that the agreement he had signed was described as a "plea and

cooperation agreement." He wanted that reference to cooperation

out of the agreement, and he said that his counsel pledged to
correct the mistake:

In the plea [agreement] there was a mistake where
it stated that supposedly I was cooperating with
the Court and I didn't know that because I don't
know English and that information was given to me
by the attorney of a codefendant of mine that I
should send a motion because in the plea agreement
in page five it stated that I was cooperating with
the Court. If you could check that, and I told
[my] counsel . . . [and] he prepared the motion on
the 6/19, and he did not explain that to me that
that was included in the agreement, had I known
that I would not have signed. . . . He said it was
a mistake he made.

The district court then asked Cruz Castro's counsel to

"address the Court regarding the allegations made by the

defendant." Although Cruz Castro had accused his counsel (along

with the government) of misrepresenting the terms of the plea

agreement, his counsel did not directly address that accusation.

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Rather, he focused on the error in the plea agreement referring to

a cooperation agreement:

On several occasions [I] went to [visit Cruz Castro
in prison] to explain to him the presentence report
and the plea agreement, [and I] found that on the
plea agreement on Page 5 a typographical error was
made where he said he signed a witness cooperation
agreement. [I] took this to the District Attorney
office and they filed an addendum which I gave copy
to him, which specifically states that in no way
this defendant has cooperated with the government,
in any matter.

Cruz Castro's counsel said that he had told Cruz Castro, while he

was in prison, that he could only receive the benefit of the

downward departure to a 96 month sentence if he cooperated with the

government:
[He was] afraid that physically something will
happen to him if he will comply with the safety
valve. I explained to him that that was not the
case, that it was just a personal thing that in
order to go below the minimum in this case, in
order for us to comply with the government and with
the Court for in order to him to get the 96 months,
in no circumstances, your Honor, this defendant
would allow to arrange to be interviewed in order
to comply. [I tried to get the government to agree
to a 96 month sentence], but the government didn't
agree and said that we were bound by what we
signed, that he had to comply.

Apparently concerned about a possible misunderstanding by Cruz

Castro, the district court asked his counsel whether he had

explained to Cruz Castro "the difference between a cooperating

agreement and the safety valve which involves a debriefing by the

government."1 He indicated that he had.

1
Although the record does not disclose the precise difference
to which the district court was referring in this case, we
recognize that a cooperation agreement may require the defendant to
offer more extensive assistance to government prosecutors than the

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 The district court also asked Assistant United States

Attorney David Rivera, who represented the government at the

sentencing hearing, to comment on Cruz Castro's assertions.
Invoking the integration clause in the plea agreement, Rivera

responded that the "plea agreement . . . does contain very explicit

language . . . regarding the fact that no other agreements are made
that are beyond this plea agreement . . . unless they are in

writing."

The district court then affirmed its earlier finding that

the plea in this case was knowing and voluntary and imposed the 120

month sentence called for by the plea agreement if Cruz Castro did

not qualify for a lesser sentence under the safety valve provision.

Cruz Castro appeals, asking us to disregard his waiver of appeal
and vacate the judgment and sentence because they did not reflect

the terms of the oral agreement he claims to have made with the

government.

II.

As noted, the government argues that we should dismiss
Cruz Castro's appeal because he signed a plea agreement waiving his

debriefing envisioned in the safety valve provision. Nevertheless,
defense counsel’s characterization of safety valve debriefing as
"just a personal thing", with its suggestion that such a debriefing
need only concern the defendant’s own participation in the criminal
venture, is not wholly accurate. U.S.S.G. 5C1.2(a)(5) obligates
the defendant to provide "the government all information and
evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or common scheme . . . ."
(emphasis supplied).

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right to appeal. We therefore must address the validity of this

waiver.

In determining whether to enforce a presentence waiver of
appellate rights, "[w]e look first to confirm that the written plea

agreement signed by the defendant contains a clear statement

elucidating the waiver and delineating its scope." United States

v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001). Second, we determine

whether the district court "question[ed] the defendant specifically

about her understanding of the waiver provision and adequately

inform[ed] her of its ramifications." Id. This prong of Teeter

reflects the Federal Rules of Criminal Procedure, which direct the

court to "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 or to collaterally attack the sentence" before accepting

a guilty plea. Fed. R. Crim. P. 11(c)(6). Finally, we may refuse
to enforce the waiver if doing so would work a miscarriage of

justice. Teeter, 257 F.3d at 25-26.

A. Clear Language in the Plea Agreement

The plea agreement challenged here clearly meets the

standards of the first prong of the Teeter test. The agreement
states:
Defendant Ramon de la Cruz Castro hereby agrees
that if this Honorable Court accepts this Plea and
Cooperation Agreement and sentences him according
to its terms and conditions, defendant Ramon de la
Cruz Castro waives and surrenders his right to
appeal the judgment and sentence in this case.

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Cruz Castro's attorney affirmed that he had translated the

agreement for Cruz Castro and made him aware of all of its clauses.

There can be no doubt that the plea agreement contained "a clear
statement elucidating the waiver and delineating its scope." Id.

at 24. Cruz Castro effectively concedes this point on appeal,

eschewing any argument that the language of the plea agreement was
unclear.

B. Adequate Assurance of Cruz Castro's Understanding of the Waiver

Cruz Castro focuses his argument on the second prong of

the Teeter test--whether the district court "question[ed] the

defendant specifically about [his] understanding of the waiver

provision and adequately inform[ed] [him] of its ramifications."
Id. He argues first that the district court did not adequately
inform him of the ramifications of the waiver. He also argues that

the district court effectively abrogated the waiver, or at least
left its import in doubt, by telling him that he did have the right
to appeal in some circumstances.

At the change of plea hearing, in an effort to assure
that Cruz Castro understood the scope of the waiver and its
implications, the district court asked, "Do you understand that by

entering into this plea agreement and entering a plea of guilty you
have given up your right to appeal all or part of your sentence?"
Cruz Castro argues that this seemingly straightforward question was

misleading. Given the intricacy of his argument, we quote it at
some length:

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 [T]he question fundamentally misled Mr. Cruz Castro
as to the nature of his waiver of his right to
appeal his sentence because the phrase "all or part
of" as used in the question allowed two separate
meanings to be attached to the question. The
question could reasonably be understood by Mr. Cruz
Castro as suggesting "you have waived your right to
appeal all of your sentence or part of your
sentence." It could alternatively be equally
reasonably understood to ask whether Mr. Cruz
Castro understood he had waived his right to appeal
any part of his sentence. In this case, it was
natural for Mr. Cruz Castro to understand his
potential sentence of imprisonment as having two
parts: (1) the first part to be the inevitable
minimum 96-month sentence he would receive if
sentenced under the "safety valve" provision of the
USSG [United States Sentencing Guidelines] and (2)
the second part as comprising any additional length
of time he might be sentenced to serve above and
beyond that minimum of 96 months. If Mr. Cruz
Castro understood his sentence as having two
potential parts in this way and also took the
Judge's question to have [the] first meaning stated
above, as would be reasonable, the question would
only have informed Mr. Cruz Castro that part of his
sentence of imprisonment could not be appealed.

The plain language of the district court's inquiry does not bear

the weight of this strained interpretation. If one cannot appeal
all of a sentence, or part of it, there is plainly nothing left of

the sentence to appeal. Even when the phrase is considered in the

context described by Cruz Castro, it is difficult to understand how

the judge's use of the phrase "all or part" could lead to Cruz

Castro's alleged misunderstanding of the statement. We reject this

argument.

Cruz Castro's second objection to the court's inquiry

relates to an exchange between the court and the defendant which

began with this question: "Do you understand that under some

circumstances you or the government may have a right to appeal any

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sentence that the court imposes?" Cruz Castro answered in the

affirmative. He now argues that "[t]hat question was flawed

because it failed to identify . . . what categories of
circumstances (such as government misconduct, ineffective

representation) constituted 'some circumstances.'" Absent such

explicit qualifications, Cruz Castro says, the reminder abrogated
the waiver provision.

We said in Teeter that "[i]f 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." Id. Hence "broad assurances to a defendant who has

waived her appellate rights (e.g., "you have a right to appeal your
sentence") . . . muddy the waters and tend to instill false hope,"

and thus are "to be avoided." Id.

There was no such broad assurance here. Context is
important, and several elements crucial to the Teeter decision not

to enforce the waiver of appellate rights at issue in that case are

missing here. In Teeter,

[d]uring 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. . . . [T]he
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. . . .
Given the court's failure to make inquiry into
the waiver, its unfortunate contradiction of the
waiver's terms, and the lack of any correction,
then or thereafter, we cannot say with the

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 requisite assurance that the appellant's surrender
of her appellate rights was sufficiently informed.
Id. at 26-27 (footnote omitted). Whereas the district court in

Teeter gave the defendant an unqualified assurance that she could

appeal, the district court here only indicated that Cruz Castro
could appeal "in some circumstances." That statement is correct in

the sense that we may entertain an appeal in order to correct a

"miscarriage of justice" even in the face of a knowing and

voluntary waiver of appeal. See id., 257 F.3d at 25 (and

discussion below).

Moreover, whereas the court in Teeter failed entirely to

assure that Teeter knowingly and voluntarily agreed to the waiver,
the district court here asked Cruz Castro and his counsel if he

knew "that by entering into this plea agreement and entering a plea

of guilty [he] would have waived or given up [his] right to appeal
all or part of [his] sentence." Cruz Castro answered, "Yes, sir."

The district court also determined that Cruz Castro's counsel had

"explained this agreement to Cruz Castro in Spanish and [was]

satisfied that he [understood] it."

Taken in context, the district court's reminder to Cruz

Castro that he could appeal "under some circumstances" cannot

reasonably be understood as a direct contradiction of the tenor of

the waiver. Id. at 27 (finding that the waiver was not knowing and

voluntary only after determining that the district court "directly

contradicted the tenor of the waiver provision"). We conclude that

the terms of the plea agreement and the colloquy at the change of

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plea hearing support the conclusion that Cruz Castro's waiver of

appellate rights was both knowing and voluntary.2

C. Miscarriage of Justice

We may refuse to enforce a knowing and voluntary waiver

of appellate rights if doing so would work a miscarriage of

justice. Teeter, 257 F.3d at 25-26. However, as Teeter enjoins,

the miscarriage of justice reservation "will be applied sparingly

and without undue generosity." Id. at 26. As we explained in

Teeter, the miscarriage of justice reservation "lessen[s] 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." Id. If the government had to defend fully on appeal
every miscarriage of justice challenge to a waiver of appeal, the

2
We note that the district court did not have the benefit of
our Teeter decision, handed down eighteen months later, when it
accepted the change of plea in this case. Nevertheless, we find
that its handling of the waiver of appeal explanation anticipated
and was consistent with Teeter. Moreover, we note that the form of
the inquiry followed the script laid out in the Benchbook for U.S.
District Court Judges (4th ed. 1996, March 2000 rev.) published by
the Federal Judicial Center. The Benchbook suggests that when
taking pleas of guilty, "if the plea agreement involves a waiver of
the right to appeal the sentence, ask the defendant: . . . ."

Do you understand that by entering into this agreement
and entering a plea of guilty you will have waived or
given up your right to appeal or collaterally attack all
or a part of this sentence.

Id. at 73 (emphasis in original). The Benchbook also contains the
suggestion that "[t]he court should discuss the specific terms of
the waiver with the defendant to ensure that the waiver is
knowingly and voluntarily entered into and that defendant
understands the consequences." Id.

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very act of defending against that claim would deprive the

government of the benefit of its waiver of appeal bargain.3

Here, Cruz Castro claims that we should undo his entry of
plea and vacate his conviction because of an alleged oral agreement

with the prosecution for a shorter term of incarceration than the

one contemplated by the written plea agreement. In pressing this
claim, he argues that the district court erred either in rejecting,

at the end of the sentencing hearing, his claim of such an oral

modification, or in failing to give him an opportunity to develop

the record on this claim more fully. Cruz Castro treats this oral

modification claim as the merits of his appeal, to be addressed

after he establishes the unenforceability of his waiver of appeal

because of deficiencies in the court’s explanation of that waiver.
As the government recognizes, however, the underlying logic of his

oral modification claim is that his reliance on an oral agreement

with the prosecution means that he did not enter the written plea
agreement knowingly and voluntarily, and hence it would be a

miscarriage of justice to enforce against him the waiver of appeal

provision included in that written agreement.

We reject that logic and his request that we review on

direct appeal the decision of the trial court rejecting his claim

of an oral modification of the written plea agreement. For

analytical purposes, we treat the clause in the plea agreement

3
We also sounded a cautionary note for defendants in Teeter:
". . . 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." Teeter, 257 F.3d at 25.

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waiving appellate rights as an independent clause of the agreement,

subject to the discrete inquiry on knowingness and voluntariness

set forth in Parts II.A. and II.B. of this opinion. Except for
miscarriage of justice review, the validity of the appellate waiver

does not depend on whether other clauses of the plea agreement were

entered into knowingly and voluntarily. There may be some case, on
particular facts, where it would be a miscarriage of justice that

a defendant entered a plea agreement based on a mistake of fact.

However, miscarriage of justice review is not available here

because, as a threshold matter, there is in this appellate record

no serious question presented of a miscarriage of justice.

We cite three considerations that demonstrate Cruz

Castro's inability to establish his miscarriage of justice claim on
this record. First, the district court had before it Cruz Castro's

plea agreement which contained the following integration clause:

This written agreement constitutes the complete
Plea Agreement between the United States, the
defendant, and defendant's counsel. The United
States has made no promises or representations
except as set forth in writing in this Plea
Agreement and the parties deny the existence of any
other terms and conditions not stated herein.

At the change of plea hearing, Cruz Castro's counsel attested that

he "carefully translated and reviewed every part [of] this Plea

Agreement with the defendant." We have said previously that

"[w]here, as here, an unambiguous plea agreement contains an

unqualified integration clause, it normally should be enforced

according to its tenor. That means, of course, that an inquiring

court should construe the written document within its four corners,

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'unfestooned with covenants the parties did not see fit to

mention.'" United States v. Alegria, 192 F.3d 179, 185 (1st Cir.

1999) (quoting United States v. Anderson, 921 F.2d 335, 338 (1st
Cir. 1990)).

Second, at his change of plea hearing, Cruz Castro

explicitly denied the existence of any oral agreement with
prosecutors:

THE COURT: Do you understand the terms of the plea
agreement?
DEFENDANT: Yes, sir.
THE COURT: Does the plea agreement represent in its
entirety all of your understandings with the
government?
DEFENDANT: Yes, sir.
***
THE COURT: Has anyone made any promise or assurance
to you of any kind in an effort to induce you to
plead guilty and sign the plea agreement in this
case?
DEFENDANT: No, sir.

Third, in opposition to the integration clause in the

plea agreement and the disavowal at the change of plea hearing of
any promise from the prosecution outside of the plea agreement,

Cruz Castro offers only his eleventh hour claim of a side deal with
the prosecution. This type of claim, grounded in a belated factual

assertion and raised to undo a result previously acknowledged by

the defendant in writing and in colloquy with the court, falls far

short of demonstrating a serious question of "miscarriage of

justice" as contemplated by Teeter.4 There being no basis to

4
Disclaiming any intent to be exhaustive, Teeter suggests
that we determine whether an alleged error constitutes a
miscarriage of justice by assessing "the clarity of the [alleged]
error, its gravity, its character (e.g., whether it concerns a fact
issue, a sentencing guideline, or a statutory maximum), the impact

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invoke full miscarriage of justice analysis, we do not engage in

any further review of the district court's rulings. Instead, we

will enforce Cruz Castro's knowing and voluntary waiver of his
right to appeal.

III.

In addition to his general attack on the plea agreement,

Cruz Castro also claims that his plea agreement is invalid because

his counsel did not offer him effective assistance. As Teeter

recognized, a claim "that the plea proceedings were tainted by

ineffective assistance of counsel" is an illustration of an
instance where an appellate court may refuse to honor the waiver.

257 F.3d at 25 n.9. Nonetheless, for other reasons, explained
below, consideration of the claim is not now appropriate.
"[T]he two-part Strickland v. Washington test applies to

challenges to guilty pleas based on ineffective assistance of
counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). First, the
defendant must demonstrate that "counsel's representation fell

below an objective standard of reasonableness." Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). Second, "the defendant
must show that there is a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill, 474 U.S. at 59.

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." Teeter, 257 F.3d at 26.

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 At the allocution phase of his sentencing hearing, Cruz

Castro alleged that his counsel and the prosecutor had assured him

before the change of plea hearing that he "didn't have to say
anything" in order to receive a 96 month sentence. Cruz Castro

alleges that his counsel's misrepresentation of the plea agreement,

along with his failure to admit this misrepresentation at the
sentencing hearing, indicate that his counsel's performance fell

below "an objective standard of reasonableness." Strickland, 466

U.S. at 688. He asserts further that he only pled guilty because

his counsel did not inform him that the judge had to respect the

written terms of the plea agreement.

Although Cruz Castro petitions us to consider this

ineffective assistance of counsel claim on direct appeal, we agree
with the government that a "collateral proceeding would be the

appropriate" setting for the presentation of this claim. "[E]ven

after a trial is completed, we do not entertain ineffective
assistance claims on direct appeal absent an evidentiary record

that allows us to evaluate the fact-specific allegations." United

States v. Genao, 281 F.3d 305, 313 (1st Cir. 2002) (citing United

States v. Woods, 210 F.3d 70, 74 (1st Cir. 2000)). The evidentiary

record here is not complete enough to allow us to evaluate Cruz

Castro's allegations of ineffective assistance of counsel. A

collateral proceeding under 28 U.S.C. § 2255, "in which the parties

and the district court can address factual matters relevant to the

issue," is the proper setting for Cruz Castro's ineffective

assistance of counsel challenge to a waiver of appellate rights.

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Id. (citing United States v. Jadusingh, 12 F.3d 1162, 1169-1170

(1st Cir. 1994)).

IV.

Applying Teeter, 257 F.3d 14 (1st Cir. 2001), we conclude

that Cruz Castro's waiver of his right to appeal was knowing and

voluntary. The language of the waiver in the plea agreement was

clear, and the district court inquired at the change of plea

hearing in compliance with Rule 11(c)(6) of the Federal Rules of

Criminal Procedure to ensure that Cruz Castro understood the

consequences of the waiver. There is no serious question presented
in this appellate record of a miscarriage of justice precluding

enforcement of the waiver of appeal. We therefore enforce the
waiver and dismiss Cruz Castro's appeal.

Appeal Dismissed.

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