United States Court of Appeals
For the First Circuit
No. 06-2655
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN BORRERO-ACEVEDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Chief Judge,
O'Connor,* Associate Justice,
and Torruella, Circuit Judge.
Johnny Rivera González for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief for
appellee.
July 10, 2008
*
The Hon. Sandra Day O'Connor, Associate Justice (Ret.) of
the Supreme Court of the United States, sitting by designation.
LYNCH, Chief Judge. We apply, for the first time, the
Supreme Court's recent plain error decisions to a defendant's
unpreserved claim of Rule 11(b)(1)(N) error as to a waiver of
appeal clause at the change-of-plea hearing. See United States v.
Dominguez Benitez, 542 U.S. 74 (2004); United States v. Vonn, 535
U.S. 55 (2002); cf. United States v. Teeter, 257 F.3d 14 (1st Cir.
2001).
In doing so, we join the other circuits to have
considered the question and hold that the plain error standard
applies to unpreserved claims of violations of Fed. R. Crim. P.
11(b)(1)(N), albeit our understanding of the plain error rule seems
to differ from some. See, e.g., United States v. Murdock, 398 F.3d
491, 496 (6th Cir. 2005); United States v. Arellano-Gallegos, 387
F.3d 794, 797 (9th Cir. 2004). The defendant must show, as part of
his demonstration that his substantial rights were affected, a
reasonable probability that he would not have entered the plea had
the error not been made.
We conclude that defendant has not met his burden, and
the waiver of appeal clause at issue here is to be enforced. As a
result, we do not reach defendant's underlying arguments that the
plea is invalid for other reasons.
I.
On July 20, 2005, in a one-count indictment covering him
and eleven co-defendants, Juan Borrero-Acevedo was charged with
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conspiracy to possess with intent to distribute five kilograms or
more of cocaine and one kilogram or more of a mixture or substance
containing a detectable amount of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), 846. The indictment identified Borrero
as one of the suppliers for the conspiracy's drug points. After
initially pleading not guilty, Borrero filed a motion to change his
plea, which was referred to a magistrate judge.
The change-of-plea hearing was conducted on June 9, 2006,
by a magistrate judge. Borrero entered a guilty plea pursuant to
Fed. R. Crim. P. 11(c)(1)(A) and (B) and an agreement with the
government. The plea agreement stated, and the government
testified at the hearing, that at trial the government would have
presented evidence establishing that, from 1999 to the date of the
indictment, the defendant participated in the distribution of
cocaine and heroin in the La Via sector at Aguadilla, Puerto Rico.
During this time, defendant was considered a supply source for
heroin in La Via and was involved in at least one drug transaction
there. He conspired to sell between 700 grams and one kilogram of
heroin in furtherance of the conspiracy.
Borrero benefitted from the plea agreement he had reached
with the government. Based on the charges in the indictment,
Borrero was subject to a minimum ten-year sentence. Pursuant to
the plea agreement, the government recommended an eighty-seven
month prison term, which was the sentence the court imposed. The
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plea agreement contained a simple and easily understood waiver of
appeal. This waiver stated: "The defendant hereby agrees that if
this Honorable Court accepts this 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."
In 1999, Congress added to Rule 11 what would become
section (b)(1)(N), which requires the court both to inform the
defendant of and to determine that the defendant understands "the
terms of any plea-agreement provision waiving the right to appeal
or to collaterally attack the sentence."1 Fed. R. Crim. P.
11(b)(1)(N). The purpose of the amendment was to ensure that
waivers of appellate rights are knowing and voluntary. See id. 11
advisory committee's note ("1999 Amendments"). When Rule
11(b)(1)(N) was added, it became subject to the terms of Fed. R.
Crim. P. 11(h) that "[a] variance from the requirements of this
rule is harmless error if it does not affect substantial rights."
1
The provision states:
Before the court accepts a plea of guilty or nolo
contendere, the defendant may be placed under oath,
and the court must address the defendant personally
in open court. During this address, the court must
inform the defendant of, and determine that the
defendant understands, . . . the terms of any plea-
agreement provision waiving the right to appeal or
to collaterally attack the sentence.
Fed. R. Crim. P. 11(b)(1)(N).
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This language is similar to the harmless error rule in Fed. R.
Crim. P. 52(a).
It is undisputed here that the magistrate judge failed to
comply with the requirements of Rule 11(b)(1)(N) during the
colloquy with the defendant at the change-of-plea hearing. The
prosecutor also failed to point out the waiver during the
colloquy.2
Borrero could have attempted, based on this omission, to
withdraw his guilty plea in the trial court before sentencing. See
id. 11(d)(2)(B). Had he done so, he would have had to show only a
"fair and just reason for withdrawal." Id.; see also, e.g., United
States v. Newbert, 504 F.3d 180, 183-84 (1st Cir. 2007) (affirming
decision of trial court not to enforce waiver of rights where
defendant had been permitted to withdraw his plea under Rule
11(d)(2)(B)). Having raised the omission for the first time on
appeal, Borrero faces a much tougher standard.
Borrero argues that the magistrate judge's failure to ask
him specifically about the waiver of appeal means that he is not
bound by this waiver. Not so.3 Borrero's primary argument is that
2
As a matter of efficiency and securing finality,
prosecutors would be well-advised to call such omissions to the
attention of the court at change-of-plea hearings.
3
In its initial brief, the United States took the position
that because there had been no mention of the appellate waiver at
the plea colloquy, the waiver could not be enforced. This court is
not bound by a party's concessions. See United States v. Mescual-
Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004). The court directed the
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it would be unjust to hold him to the waiver of appeal because this
would block him from making his argument on the merits, which is
that insufficient attention was paid to whether his plea was
voluntary given that it was part of a package deal and he might
have been coerced into pleading guilty by a co-defendant.
II.
Vonn resolved a circuit split4 on the standard for
evaluating Rule 11 errors. It held that a defendant who has not
preserved his claim of Rule 11 error and wishes to be relieved of
his guilty plea on appeal must satisfy the plain error standard of
Fed. R. Crim. P. 52(b). Vonn, 535 U.S. at 58-59.
In order to show plain error, a defendant must
demonstrate that there is "(1) 'error,' (2) that is 'plain,' and
(3) that 'affect[s] substantial rights.' If all three conditions
are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error 'seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.'" Johnson v. United States, 520 U.S. 461, 467 (1997)
parties to file supplemental briefs on the waiver issue, calling
their attention to the case law on point. Thereafter, the United
States filed a supplemental brief reversing its position and
arguing that defendant was bound by his appellate waiver because he
had not met the third prong of the plain error test.
4
Before Vonn, this court had held that unpreserved claims
of Rule 11 error were subject to plain error review under Rule
52(b), and not harmless error review. See United States v. Gandia-
Maysonet, 227 F.3d 1, 5 (1st Cir. 2000). Vonn agreed with the
position. Vonn, 535 U.S. at 61, 62 n.4.
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(quoting United States v. Olano, 507 U.S. 725, 732 (1993))
(alterations in original).
As we noted in United States v. Mescual-Cruz, 387 F.3d 1
(1st Cir. 2004), the decision in Vonn also clarified two areas as
to application of the plain error rule to Rule 11 errors. First,
the burden is on the defendant to make the required showings. Id.
at 7. As Vonn noted, this placement of burdens is necessary to
give the defendant an incentive to bring an obvious Rule 11 error
to the court's attention when it occurs. Vonn, 535 U.S. at 73.
Second, an appellate court may consider the whole record when
considering the effect of the Rule 11 error on defendant's
substantial rights, and not simply the record of the plea colloquy.
Mescual-Cruz, 387 F.3d at 7.
Vonn, by its terms, is not restricted to particular types
of Rule 11 errors. This court has applied Vonn's plain error rule
to claimed Rule 11 errors regarding defendant's understanding of
his possible sentencing exposure, United States v. Jimenez, 512
F.3d 1, 3 (1st Cir. 2007); defendant's understanding of the charges
and the factual basis for the plea, United States v. Smith, 511
F.3d 77, 85 (1st Cir. 2007); defendant's understanding of a package
plea agreement, Mescual-Cruz, 387 F.3d at 7; and a lack of
explanation of the interstate commerce elements of the crime to
which defendant was pleading guilty, United States v. Cruz-Rivera,
357 F.3d 10, 12-13 (1st Cir. 2004). As we read Vonn, it provides
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no basis for applying a standard other than plain error to a
court's failure to address a waiver of appeal (or a waiver of the
right to collaterally attack a sentence) as required by Rule
11(b)(1)(N). Indeed, other circuits have applied the plain error
test articulated in Vonn to claims involving violations of Rule
11(b)(1)(N). See, e.g., United States v. Sura, 511 F.3d 654, 658
(7th Cir. 2007); Murdock, 398 F.3d at 496; Arellano-Gallegos, 387
F.3d at 796; United States v. Edgar, 348 F.3d 867, 871 (10th Cir.
2003).
In Dominguez Benitez, the Supreme Court set the standards
that a defendant complaining of an unpreserved Rule 11 error must
meet on the third prong of the plain error test. In Dominguez
Benitez, the judge had failed to warn the defendant, as required by
Fed. R. Crim. P. 11(c)(3)(B), that he could not withdraw his plea
if the court did not accept the government's sentencing
recommendation, an obvious error. Dominguez Benitez, 542 U.S. at
78. The question on which the Court granted review was the showing
that must be made by a defendant alleging a violation of Rule 11
under the plain error standard. The Court held that a defendant is
"obliged to show a reasonable probability that, but for the [Rule
11] error, he would not have entered the plea." Id. at 76; see
also Hill v. Lockhart, 474 U.S. 52, 59 (1985) (to demonstrate
prejudice in an ineffective assistance of counsel claim, defendant
must "show that there is a reasonable probability that, but for
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counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial"). It is not enough to ask whether the
defendant understood the rights at issue when he entered his guilty
plea; courts must consider the effect of an omitted warning on the
defendant's decision to plead guilty. Dominguez Benitez, 542 U.S.
at 84. The Court also stated that the defendant's showing of
prejudice should be causally tied to the precise Rule 11 error
alleged. Id. at 85. The Court did not suggest it would vary the
rule depending on the type of Rule 11 violation alleged.
The "reasonable probability" standard for showing
prejudice on plain error review of Rule 11 violations is less
onerous than a requirement that a defendant prove by a
preponderance of the evidence that but for the error, things would
have been different. See id. at 83 n.9. One rationale for using
the "reasonable probability" standard for Rule 11 plain error
review, instead of a more burdensome standard, may be the
recognition that a defendant will "rarely, if ever be able to
obtain relief for Rule 11 violations under [28 U.S.C.] § 2255."
Id.; see also Vonn, 535 U.S. at 63-64; United States v. Timmreck,
441 U.S. 780, 783-84 (1979).
We have enforced the Dominguez Benitez rule before in
considering unpreserved claims that the district court committed
Rule 11 error in accepting a plea. See, e.g., United States v.
Caraballo-Rodriguez, 480 F.3d 62, 76 (1st Cir. 2007); United States
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v. Matos-Quiñones, 456 F.3d 14, 23 (1st Cir. 2006); United States
v. Delgado-Hernandez, 420 F.3d 16, 28 (1st Cir. 2005).
III.
The question here is not whether the waiver of appeal
clause in the plea agreement was initially valid, but whether
defendant, who could have but did not raise the issue in the
district court, where it could easily have been remedied, has met
the plain error standard.
Applying Vonn, it is clear that the defendant has
established the first two prongs of the plain error rule. The
magistrate judge committed error in his failure to comply with the
clear terms of Rule 11(b)(1)(N), and that error was both obvious
and plain. Murdock, 398 F.3d at 497; Edgar, 348 F.3d at 871-72;
accord Teeter, 257 F.3d at 24.
The third prong of the test asks whether defendant has
shown that his substantial rights were affected. We start the
analysis of the third prong with the plea agreement and the plea
colloquy. Relevant considerations include, inter alia, the clarity
of the plea agreement itself, defendant's signature on the
agreement and his attestations, defendant's statements at the
change-of-plea hearing, statements by counsel for both the
defendant and the government at the hearing, and the nature of the
questioning done by the judge at the hearing.
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The waiver of appeal clause was clear and self-evident on
its face. Borrero initialed every page of the plea agreement and
signed his name at the bottom to indicate that he had "read the
Plea Agreement and carefully reviewed every part of it with my
attorney," and that he fully understood and was voluntarily
agreeing to it.
At the plea colloquy, Borrero stated that he was thirty-
eight years old, had an eleventh grade education, was mentally
competent, and was suffering from no disability. Borrero also
stated affirmatively that (a) he had the opportunity to review and
discuss the plea agreement with his attorney; (b) he did not need
additional time to discuss the agreement with his attorney; (c) he
understood all the terms of the plea agreement and no one had made
any promises to him that were not contained in the agreement; (d)
he understood that the court could accept or reject the agreement,
that sentencing was within the court's discretion, and what the
statutory minimum and maximum penalties were; and (e) he had
discussed with his attorney and understood that he was waiving
various constitutional rights. Additionally, his attorney stated
that Borrero was fully competent; that he had met with Borrero on
multiple occasions to discuss the case and his defense; and that he
had provided a sentence-by-sentence translation of the plea
agreement into Spanish for Borrero.
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As to Borrero's burden to show prejudice, we look to the
"entire record, not to the plea proceedings alone." Dominguez
Benitez, 542 U.S. at 80; see also Caraballo-Rodriguez, 480 F.3d at
76. Here the government had a strong case and Borrero had
compelling reasons to make a deal and reduce his sentencing
exposure. Borrero received the exact sentence recommended by the
plea agreement. Borrero, with good reason, does not even attempt
an argument that he would not have entered the plea had he been
aware he was waiving his appellate rights. Indeed, it is hard to
see how the omission of the appellate waiver warning from the bench
had any effect on his decision to plead guilty. See Dominguez
Benitez, 542 U.S. at 85; Caraballo-Rodriguez, 480 F.3d at 76.
Whether or not Borrero's decision to plead guilty was foolish (and
it does not seem to be), the "point . . . is not to second-guess a
defendant's actual decision." Dominguez Benitez, 542 U.S. at 85.
Some courts have held that where there is no discussion
of an appellate waiver clause at the plea hearing and there is an
absence of "any indication on the record that the defendant
understood that he had a right to appeal and he was giving up that
right," that will suffice to satisfy the third prong of the plain
error test. Murdock, 398 F.3d at 497; see also Arellano-Gallegos,
387 F.3d at 797 (same). This view is, we think, inconsistent with
both Vonn and Dominguez Benitez. It is defendant's burden to show
that the waiver of appellate rights was deficient and that he would
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otherwise not have pled guilty. If the record contains no evidence
in defendant's favor, his claim fails. See Dominguez Benitez, 542
U.S. at 82; Vonn, 535 U.S. at 62-63; cf. Edgar, 348 F.3d at 872-73.
There may well be cases where a defendant can show he did
not understand that he was waiving his appellate rights, and that
had he understood the appellate waiver clause, he would not have
pled guilty. A panel in the Seventh Circuit, over a dissent, found
that to be the situation in United States v. Sura, which also
involved a Rule 11(b)(1)(N) error. But there were other indicia in
that case not present here: the seventy-one-year-old defendant, who
was undergoing mental health treatment, gave confused responses to
the district court, and the appellate court said it doubted, on the
record, whether he would have entered the plea "had he realized
that he was losing his chance to challenge the district court's
sentencing decision, which was based primarily on crimes unrelated
to the crime of conviction and gave little weight to Sura's
individual circumstances." Sura, 511 F.3d at 662. Nothing of the
sort exists here. Borrero has not shown that he did not know or
understand that he had waived his appellate rights or that he would
not have pled guilty had he realized he was waiving his appellate
rights.
We do not reach Borrero's underlying merits argument
about this being a package plea. "[A]n inquiry into the merits is
exactly what a waiver of appeal blocks." Id. at 668 (Easterbrook,
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J., dissenting). As the Supreme Court said in Dominguez Benitez,
relief from a guilty plea "will be difficult to get, as it should
be." Dominguez Benitez, 542 U.S. at 83 n.9.
There is one final point. In light of Vonn and Dominguez
Benitez, one might question what is left of this circuit's former
rule on enforceabililty of waiver of appeal clauses, announced in
United States v. Teeter. In Teeter, we held that pre-sentence
waivers of appellate rights were valid in theory, but given the
attendant dangers, we would require such waivers to meet stringent
conditions:
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. As a subset of this premise, we
think that the same flexibility ought to
pertain when the district court plainly errs
in sentencing.
Teeter, 257 F.3d at 25 (footnote omitted); see also Newbert, 504
F.3d at 189 (Boudin, J., concurring) (defendant may be relieved of
a waiver of the right to appeal by district judge where enforcing
the waiver would effect a miscarriage of justice).
More precisely, the question after Vonn and Dominguez
Benitez is whether there is any discretionary power left in this
court to decline to enforce a waiver of appeal clause where we
conclude that enforcing the waiver would be a miscarriage of
justice. The question may well be a hypothetical one; it is not
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clear such situations would exist where a defendant could not also
meet all four prongs of the plain error rule.
In Timmreck, the Supreme Court left room for a defendant
on collateral review to show that the Rule 11 proceeding either
constituted a "complete miscarriage of justice" or was
"inconsistent with the rudimentary demands of fair procedure."
Timmreck, 441 U.S. at 783 (quoting Hill v. United States, 368 U.S.
424, 427 (1962)) (internal quotation marks omitted). This suggests
such exceptions might also be available on direct review. The
Supreme Court has not directly addressed this question in the
context of Rule 11 errors regarding appellate waiver clauses, and
we do not address it here. If such a case exists in fact, and not
in hypothetical, we will address the issue then.
We enforce the waiver of appeal and dismiss the appeal.
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