Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 04-2246
UNITED STATES,
Appellee,
v.
YIRIS QUIRINDONGO-COLLAZO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lipez, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Ryan Thomas Truskoski on brief for appellant.
H.S. Garcia, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney and Jacqueline D. Novas, Assistant
United States Attorney on brief for appellee.
January 23, 2007
Per Curiam. Appellant Yris Quirindongo-Collazo executed
his plea agreement before Blakely v. Washington, 542 U.S. 296
(2004), was decided. He was sentenced after Blakely but before the
United States Supreme Court decided United States v. Booker, 543
U.S. 220 (2005). While appellant's direct appeal was pending in
this court, the Booker decision was announced. Appellant now seeks
to set aside his sentence pursuant to Booker.
In his opening brief to this court, appellant failed to
mention that his plea agreement contained an appeal waiver, and he
failed to present any argument for setting aside the waiver.
Rather, after the government filed its motion for summary dismissal
based on the waiver, appellant filed a reply brief in which he
attempted to summarily adopt his co-appellant's1 opening brief
argument regarding his appeal waiver, citing Fed. R. App. P. 28(i).
Appellant's opening brief also argues, irrelevantly, that United
States v. Antonakopolous, 399 F.3d 68 (1st Cir. 2005), is wrongly
decided and that appellant is entitled to de novo or harmless error
review.
Under stare decisis principles, this panel cannot
overrule Antonakopoulos, nor is there the least reason here to
consider doing so. Quite apart from Antonakopoulos, however,
appellant is entitled to the harmless error standard he seeks. As
we stated immediately following the Booker decision, in cases
1
United States v. Nisbett-Joseph, Appeal No. 04-1539.
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available to counsel before appellant's opening brief was filed
with this court, harmless error review is applied in cases where
the defendant has properly preserved a claim of Booker error in the
district court. United States v. Heldeman, 402 F.3d 220, 224 (1st
Cir. 2005); see also United States v. Vazquez-Rivera, 407 F.3d 476,
489 (1st Cir.), cert. denied, 126 S. Ct. 279 (2005). The record
here plainly shows that, at the sentencing hearing, defense
counsel2 objected to appellant's sentence on Blakely grounds, and
the district court assured appellant his objections were
"preserved." In its opening brief, the government properly
identified and argued the harmless error standard of review.
Before this court can review appellant's sentence under
the harmless error rubric, however, we must determine whether
appellant's pre-Blakely appeal waiver should be enforced. Setting
aside the question of whether Rule 28(i) permits an appellant, in
his reply brief, to adopt an argument presented in a co-appellant's
opening brief, as a general rule we have held that "legal argument
made for the first time in an appellant's reply brief comes too
late and need not be addressed." United States v. Brennan, 994
F.2d 918, 922 n.7 (1st Cir. 1993). Under Massaro v. United States,
538 U.S. 500, 508 (2003), however, in view of the "obvious
deficiencies in representation" in appellate counsel's failure to
mention the appeal waiver or raise the issue of its enforceability
2
Different counsel represents appellant in this appeal.
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in appellant's opening brief, we will exercise our discretion to
consider appellant's late-raised argument that his appeal waiver is
unenforceable.
After careful review of the record and applying the
three-part test described in United States v. Teeter, 257 F.3d 14,
25-26 (1st Cir. 2001), we conclude that the appeal waiver is
unenforceable, although not for the reasons argued by appellant.
As we explained in United States v. Soto-Cruz, 449 F.3d 258, 262
(1st Cir. 2006), the mere fact that Booker was decided after
appellant entered into his appeal waiver does not "somehow ...
render the enforcement of his appeal waiver a miscarriage of
justice." Where, as here, a defendant has stipulated to the
sentencing facts, agreed to be sentenced pursuant to the then-
mandatory guidelines, and is in fact sentenced as specified in the
plea agreement, the subsequent change in the law announced in
Booker, without more, provides no basis for setting aside the
sentence. Soto-Cruz, 449 F.3d at 262 (citing United States v.
Griffin, 418 F.3d 881, 882 (8th Cir. 2005) ("The fact that [the
defendant] did not anticipate the Blakely or Booker rulings does
not place the issue outside the scope of the waiver.")).
In this case, it is clear from the record that Teeter's
first prong has been satisfied. The written plea agreement clearly
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sets forth the terms of the appeal waiver.3 257 F.3d at 24.
Compliance with Teeter's second prong is, however, far more
doubtful. Teeter's second prong requires that the district court,
at the change of plea hearing, "call the waiver to the defendant's
attention and question him closely in order to ensure that he has
a full understanding of the waiver provisions and that he has
voluntarily elected to waive his right of appeal." United States
v. Gil-Quezada, 445 F.3d 33, 36 (1st Cir. 2006) (citing Teeter, 257
F.3d at 24, and Fed. R. Crim. P. 11(b)(1)(N) (requiring such a
colloquy)). The transcript of appellant's change of plea hearing
indicates that the magistrate judge asked just one question about
the appeal waiver, as follows:
THE MAGISTRATE: Very well, also this plea agreement
contains an important section ... and it reads as
follows.
"If the court accepts the terms and conditions within
this plea agreement, then you will be waiving and
giving up your right to appeal your judgment of
conviction and also the sentence imposed by the court",
do you understand that?
MR. QUIRINDONGO: Yes.
This is the only mention of the appeal waiver during the change of
plea colloquy. Moreover, the magistrate judge failed to mention
3
"The defendant hereby agrees that if this Honorable Court
accepts this Plea Agreement and sentences him according to its
terms and conditions, defendant waives and surrenders his right to
appeal the judgment and sentence in this case." The plea agreement
contains no exceptions or qualifications to this broad language.
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the appeal waiver in her Report and Recommendation to the district
court.
At the sentencing hearing, after defense counsel voiced his
Blakely objections, the judge, defense counsel, the government, and
the probation officer had an extensive discussion premised on the
assumption that appellant could and would appeal. During this
discussion, there was no mention by any party of the appeal waiver,
nor of any effect that waiver might have on appellant's right to
appeal. The court described the contemplated appeal as appellant's
unqualified "right" and repeatedly stated that the issues were
preserved for appeal so that "[i]f the defendant wishes to raise
them on appeal, he is free to do so." At the close of the
sentencing hearing, directly contrary to Teeter's teaching to avoid
"blanket assurance[s] about the right to appeal," 257 F.3d at 25,
the court gave detailed instructions pursuant to Fed. R. Crim. P.
32(c)(5) concerning appellant's appeal rights, including how and
when to file a notice of appeal. The statements made at
appellant's sentencing hearing went well beyond the kinds of
general assurances we have determined in other cases had no effect
on a knowing and voluntary waiver. See, e.g., United States v.
Gil-Quezada, 445 F.3d 33, 36-37 (1st Cir. 2006) (judge's general
comments at sentencing had no bearing on whether appellant
knowingly and voluntarily waived his appellate rights when he
entered his guilty plea four months earlier); United States v. De-
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La-Cruz Castro, 299 F.3d 5, 12 (1st Cir. 2002) (judge's comment
that appellant could appeal "in some circumstances," viewed in
context, did not contradict waiver). We thus conclude that this
is one of those isolated and extraordinary situations where an
appeal waiver was and, in the interest of justice, should be held,
ineffective.
Turning now to the record, we cannot conclude that the Booker
error in appellant's sentencing was harmless beyond a reasonable
doubt. Vazquez-Rivera, 407 F.3d at 489-90; United States v.
Fornia-Castillo, 408 F.3d 52, 73 (1st Cir. 2005). "We must be
convinced that a lower sentence would not have been imposed had the
Guidelines been advisory. This is an extremely difficult, but not
impossible, standard to meet." Vazquez-Rivera, 407 F.3d at 489-90.
That appellant stipulated to the sentencing facts "would not be
sufficient to show beyond a reasonable doubt that the judge, acting
under an advisory Guidelines system, would have applied the same
sentence on the basis of those factors," id., particularly here,
where the stipulated drug quantity attributed to appellant in his
plea agreement exposes him to a mandatory minimum sentence of five
years, 21 U.S.C. § 841(b)(1)(B), and he was sentenced to 121 months
-- the minimum allowed under the then-mandatory guidelines.
In the very unique circumstances of this case, we therefore
decline to enforce the appeal waiver. The conviction is affirmed,
but the sentence is vacated and the case is remanded for
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resentencing. We intimate no view on whether appellant should
receive a higher or lower sentence on remand, or on the
reasonableness of his previous sentence or on any revised sentence.
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