United States Court of Appeals
For the First Circuit
No. 06-2315
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO CARDONA-DÍAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Wallace,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Raúl S. Mariani-Franco, for appellant.
George A. Massucco-LaTaif, Assistant United States Attorney,
with whom Germán A. Rieckehoff, Assistant United States Attorney,
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief for appellee.
April 17, 2008
*
Of the Ninth Circuit, sitting by designation.
WALLACE, Senior Circuit Judge. Appellant Cardona-Díaz
(Cardona) challenges the 87-month sentence he received after
pleading guilty to conspiring to distribute a controlled substance.
We have jurisdiction pursuant to 18 U.S.C. § 3742(a). We dismiss
Cardona’s appeal, because it is barred as a result of the waiver of
appeal to which he consented in his plea agreement.
I.
From approximately the year 2000 until he was indicted in
May of 2005, Cardona was part of a group that sold cocaine, cocaine
base (crack), and marijuana around Barrio Corazón in Guayama,
Puerto Rico. Cardona was a seller for one of the ringleaders. In
October 2003, Cardona and other co-conspirators sold 36 grams of
crack to a Drug Enforcement Administration (DEA) confidential
informant.
Cardona subsequently was indicted by a District of Puerto
Rico Grand Jury and charged with violating 21 U.S.C. §§ 841(a)(1)
and 846, and 18 U.S.C. § 2. Count One alleged that from about 2000
to the date of the indictment, Cardona conspired to possess with
intent to distribute five kilograms or more of cocaine and fifty
grams or more of crack. Count Three charged that, on or about
October 16, 2003, Cardona and a co-defendant intentionally and
unlawfully distributed five grams or more of crack.
On March 7, 2006, Cardona pled guilty to both of those
counts. The terms of Cardona’s plea agreement provided for a base
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offense level of thirty, pursuant to U.S. Sentencing Guideline §
2D1.1(5), “for possession and conspiracy to possess with intent to
distribute between three point five (3.5) and five (5) kilograms of
cocaine and between thirty-five (35) and fifty (50) grams of
cocaine base.” [Plea Agreement, DE 147, p. 5] Cardona agreed to
both of these drug amounts in the plea agreement and at his change-
of-plea hearing. The agreement also stipulated a three-level
reduction for acceptance of responsibility, establishing a total
offense level of 27 and a sentencing range of 70-87 months
imprisonment. The parties did not stipulate to Cardona’s criminal
history category, but the Presentence Report assigned him a
criminal history category of I. The parties also agreed that no
further adjustments or departures were applicable, and that the
government would recommend that the court sentence Cardona to 87
months imprisonment.
Though the plea agreement stated only that the government
would recommend a sentence of 87 months imprisonment, during the
sentencing hearing, the district court was under the mistaken
impression that Cardona and the government had negotiated for and
agreed to a sentence of 87 months. However, neither party objected
to the district court’s characterization of the 87-month sentence
as that “agreed upon” by the parties. Ultimately, the district
court adopted the parties’ stipulations and sentenced Cardona to 87
months imprisonment.
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II.
The issue before us is whether Cardona’s appeal is barred
by the waiver contained in his plea agreement. The government
urges us to enforce that waiver, as, “under ordinary circumstances,
a knowing, voluntary waiver of the right to appeal from a sentence,
contained in a plea agreement, ought to be enforced.” United
States v. Teeter, 257 F.3d 14, 23 (1st Cir. 2001) (footnote
omitted). In determining whether to enforce the waiver, we make
three inquiries. First, we confirm whether “the written plea
agreement signed by the defendant contains a clear statement
elucidating the waiver and delineating its scope.” Id. at 24.
Second, we determine whether the district court questioned the
defendant specifically about his understanding of the waiver
provision and its ramifications. Id. Third, we consider whether
enforcing the waiver would work a miscarriage of justice. Id.
at 25-26.
Cardona concedes that the first two parts of the Teeter
test are met. The plea agreement clearly states that, as long as
the court sentenced Cardona according to the terms and conditions
of the plea agreement, Cardona would “waive[] and surrender[] his
right to appeal the judgment and sentence in this case.” [Plea
Agreement at 8] Moreover, at Cardona’s change-of-plea hearing, the
court directed Cardona to the language of the waiver in the plea
agreement and asked him if he understood the waiver, to which he
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responded “yes.” [Change of Plea transcript at 9] The court also
reminded Cardona of the waiver of appeal at sentencing. Cardona’s
waiver of his right to appeal was therefore both knowing and
voluntary, and will only be set aside if enforcing the waiver would
work a miscarriage of justice. See id.
We have consistently warned that “the miscarriage of
justice reservation ‘will be applied sparingly and without undue
generosity.’” United States v. De-La-Cruz Castro, 299 F.3d 5, 13
(1st Cir. 2002) (quoting Teeter, 257 F.3d at 26). Among the
factors we consider in determining whether enforcement would lead
to a miscarriage of justice are “the clarity of the alleged error,
its character and gravity, its impact on the defendant, any
possible prejudice to the government, and the extent to which the
defendant acquiesced in the result.” United States v. Gil-Quezada,
445 F.3d 33, 37 (1st Cir. 2006) (citing Teeter, 257 F.3d at 26).
We now consider whether honoring the waiver to deny his appeal
would work a miscarriage of justice.
Cardona’s only colorable claim is that the sentencing
court’s erroneous belief that Cardona had agreed to a sentence of
87 months requires that we remand for resentencing.1 At the
1
In his brief, Cardona argues that the district court
improperly applied the Sentencing Guidelines in a mandatory
fashion, failed to consider adequately the sentencing factors
contained in 18 U.S.C. § 3553, created unwarranted sentencing
disparities in relying on the crack-cocaine guideline range, and
violated the parsimony principle by imposing a sentence greater
than necessary to satisfy section 3553 goals. However, these
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outset, we emphasize that neither Cardona nor the government raised
this issue in the initial briefing, and did so only after a
supplemental briefing order was issued. Nor did the parties object
at the sentencing hearing; in fact, both the government and Cardona
apparently went along with the district court’s assertion that
Cardona had agreed to an 87-month sentence, despite the fact that
Cardona’s plea agreement stated only that the government would
recommend an 87-month sentence.
The court’s misunderstanding of the agreement reached
between Cardona and the government is troubling. The court
emphasized that a major factor in its decision to impose an 87-
month sentence was “that the parties bargained for 87 months,” and
stated that “the court see[s] no reason why the court should at
this time depart from what the parties agreed. This was a
negotiation. . . . So, therefore, I am going to follow what the
parties originally bargained.” [Sent. Tr. 27-29]
The government made no effort to correct the district
court's misunderstanding. In fact, the government arguably misled
the court when it stated that the 87-month sentence was "what was
bargained for and agreed to by the parties." [Sent. Tr. 24] We are
garden-variety challenges to Cardona’s sentence are too trivial to
warrant discussion in light of Cardona’s waiver of appeal.
Although we do not foreclose the possibility that the errors
Cardona alleges could in other circumstances rise to the level of
a miscarriage of justice, our review of the record in this case
satisfies us that there was no such miscarriage here.
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equally dismayed that Cardona's own counsel was silent in the face
of the misunderstanding.
However, it has not been demonstrated to our satisfaction
that this error would work a miscarriage of justice if we were not
to remand. Cardona’s waiver of his right to appeal in his plea
agreement, his failure to object to the district court’s
misunderstanding of the plea agreement at the hearing (and apparent
acquiescence in that misunderstanding), and his failure to raise
the issue on appeal until directed by us, establish a very high
hurdle for him to show the kind of error that would permit us to
entertain his argument and consider reversal. He cannot overcome
that hurdle in this appeal.
As indicated earlier, Teeter outlined the various
inquiries that we consider in determining whether enforcement of a
plea agreement would lead to a miscarriage of justice. Though some
of the Teeter factors weigh in Cardona’s favor, others suggest that
we should enforce the waiver and dismiss his appeal. First, that
Cardona “acquiesced in the result” suggests that we should enforce
the waiver. See Gil-Quezada, 445 F.3d at 37. Additionally, the
error may have influenced the high-end guidelines sentence Cardona
received, but we cannot be certain that the court would not have
imposed a similar sentence anyway. Although the district court
relied in part on its mistaken understanding that both sides agreed
to an 87-month sentence, it appears to have imposed the high
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sentence based on the drug quantities of both crack and cocaine to
which Cardona stipulated, and based on uncharged conduct including
possession of marijuana and possession of a large amount of
ammunition. Finally, although the district court would have been
free to reject the government’s recommendation (just as it was free
to reject an “agreed upon” sentence), we have recognized that when
parties agree that the government will recommend a certain
sentence, they do so with the understanding that it is likely the
district court will accept the recommendation. See United States
v. Velez Carrero, 77 F.3d 11, 11-12 (1st Cir. 1996). Thus, the
limited “character and gravity” of the alleged error, as well as
its questionable “impact on the defendant,” suggest that we should
enforce the waiver. See Gil-Quezada, 445 F.3d at 37. We therefore
conclude there is no miscarriage of justice; we enforce the appeal
waiver agreed to by the parties.
III.
Because Cardona agreed to a valid waiver of his right to
appeal his sentence, and because none of the errors he alleged
worked a miscarriage of justice, we will enforce the waiver and
dismiss his appeal.
DISMISSED.
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