United States Court of Appeals
for the First Circuit
No. 08-1024
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS GONZÁLEZ-COLÓN,
Defendant, Appellant.
No. 08-1069
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO DE LEÓN-MARTÍNEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Selya, and Tashima,*
Circuit Judges.
Linda A. Backiel for appellant González-Colón.
Michael Raymond Hasse for appellant De León-Martínez.
*
Of the Ninth Circuit, sitting by designation.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief Appellate
Division, were on brief, for appellee.
September 14, 2009
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Tashima, Senior Circuit Judge. Appellant Luis González-
Colón (“González”) appeals the 97-month sentence he received after
pleading guilty to conspiring to distribute a controlled substance.
Appellant Roberto De León-Martínez (“De León”) appeals a 24-month
sentence he received for the same charge. We have jurisdiction
under 18 U.S.C. § 3742(a), and dismiss the appeals of both
appellants, because each signed a valid and enforceable waiver of
appeal in his respective plea agreement.
I. Factual and Procedural Background
From approximately February 2005 until their indictment on
December 20, 2006, González and De León participated in a
conspiracy with ten others to distribute cocaine base (“crack”) in
Guayama, Puerto Rico. The two entered into plea agreements with
the government and on September 18, 2007, González pled guilty to
conspiracy to possess with intent to distribute at least 35, but
less than 50, grams of cocaine base in violation of 21 U.S.C. §§
841 (a) (1), 841(b)(1)(B), and 846. On the same date, De León pled
guilty to conspiracy to possess with intent to distribute at least
4, but less than 5, grams of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 846.
The terms of González’s plea agreement provided for a total
offense level of 29. The parties did not stipulate to any criminal
history category, but presumed a category of III, yielding a
guideline range of 108-135 months’ imprisonment. Under a section
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titled “Sentencing Agreement,” the agreement stated, “The parties
agree to recommend a term of imprisonment of one hundred eight
(108) months or the lower end of the applicable guideline range,
whichever is greater.”
In calculating the applicable criminal history category, the
Presentence Investigation Report (“PSI”) for González noted that on
July 11, 2006, González had been sentenced by the Superior Court in
Puerto Rico to three consecutive five-year terms of imprisonment
for drug arrests dating from November 4, 2004, August 1, 2005, and
January 30, 2006. The commonwealth court had suspended the
sentences and placed González on probation. Concluding that
González was therefore on probation for a prior sentence at the
time he committed the instant offense, the PSI added two points to
González’s criminal history score pursuant to U.S.S.G. § 4A1.1(d),
resulting in a criminal history category of II.
At his sentencing hearing, González challenged the PSI’s
recommendation of a criminal history category of II, arguing that
because the two specific drug transactions named in the plea
agreement occurred on March 2 and April 11, 2006, they predated the
state court’s imposition of probation on July 11, 2006, and thus
two points should not have been added under U.S.S.G. § 4A1.1(d).
The court denied the motion.
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The court then noted that with a criminal history category of
II, and a total offense level of 27,1 the Guidelines recommended a
range of 78 to 97 months. At that point, González’s counsel stated
that the plea agreement called for a sentence of “108 [months] or
the upper end of the applicable guideline.” In fact, the
sentencing agreement called for 108 months or the lower end of the
applicable guideline, whichever was greater — meaning 108 months
minimum. Neither party noted or objected to the misstatement, and
the district court sentenced González to 97 months.
As for De León, the terms of his plea agreement yielded a
total offense level of 19. The parties agreed to neither a
criminal history category nor a particular guideline sentence,
agreeing only to “argue for a sentence within the applicable
guideline range.”
The PSI calculated a criminal history category of I, leading
to a guideline range of 24 to 30 months. The district court
sentenced De León to 24 months’ imprisonment.
Both plea agreements, for González and for De León, contained
a waiver of the right to appeal the judgment and sentence,
providing, “The defendant hereby agrees that if this Honorable
Court accepts this agreement and sentences him according to its
1
The district court reduced the offense level calculation
from the plea agreement following the November 1, 2007, amendments
to the Guidelines.
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terms and conditions, defendant waives and surrenders his right to
appeal the judgment and sentence in this case.”
González nonetheless appeals his sentence, arguing that the
district court sentenced him on the basis of “faulty memory” and
under an incorrect calculation of his criminal history category.
De León also appeals, arguing that the district court impermissibly
participated in plea bargain discussions.
II. Discussion
González-Colón
We must first determine whether González’s appellate waiver is
valid and enforceable. Concluding that it is, we decline to reach
the merits of his appeal.
In United States v. Teeter, 257 F.3d 14 (1st Cir. 2001), we
established the standard for reviewing appellate waivers, and held
that such waivers are binding and enforceable so long as: (1) the
written plea agreement clearly delineates the scope of the waiver;
(2) the district court specifically inquired at the plea hearing
about the waiver, and the questioning of the defendant suffices to
show that the waiver was knowing and voluntary; and (3) the denial
of the right to appeal would not constitute a miscarriage of
justice. Id. at 24-25. We must also be satisfied that the appeal
falls within the scope of the waiver. See United States v. Acosta-
Roman, 549 F.3d 1, 3 (1st Cir. 2008).
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The first Teeter factor is easily met. The language of the
waiver, quoted above, has been upheld in nearly identical
iterations, and González effectively concedes this point. See
United States v. De-La-Cruz Castro, 299 F.3d 5, 10 (1st Cir. 2002).
On the second Teeter factor, González argues that the district
court failed to describe or discuss the waiver in any way. The
record belies this assertion. The district court twice queried
González about the waiver at the change-of-plea hearing, and used
clear language in doing so (“Do you understand that by pleading
guilty, you will be held accountable to the waiver of appeal clause
that appears in your respective plea agreements?”). It also asked
about the waiver again at the sentencing hearing, and used no
misleading or contradictory language at any time. Accordingly, the
second Teeter factor is satisfied. See United States v. Gil-
Quezada, 445 F.3d 33, 37 (1st Cir. 2006); De-La-Cruz Castro, 299
F.3d at 11-12.
On the third Teeter factor, González claims that enforcing the
waiver would amount to a miscarriage of justice, because the
district court erred in calculating his criminal history category.2
2
González also argues for a miscarriage of justice because
the district court acted with a “faulty memory” in sentencing him
to 97 months, a deviation from the sentencing recommendation in the
plea agreement. Because, however, the plea agreement called for a
minimum of 108 months, we fail to see how the defendant’s windfall
amounts to a miscarriage of justice. The better argument on this
issue — though not by much — is that the deviation means the
sentence is outside of the scope of the waiver, and therefore the
waiver is inapplicable. We address this argument below.
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González argues that two points should not have been added to his
criminal history score pursuant to U.S.S.G. § 4A1.1(d) for
committing the instant offense while on probation for a prior
sentence, because the federal conspiracy indictment “encompassed”
all the transactions at issue in the July 11, 2006, commonwealth
court proceeding. Therefore, his thesis runs, the commonwealth
court sentence was not a “prior sentence” under U.S.S.G. § 4A1.2,3
and the probation resulting from it may not be counted under
U.S.S.G. § 4A1.1(d).
In reviewing González’s argument, we note that the miscarriage
of justice exception should be applied “sparingly and without undue
generosity.” Teeter, 257 F.3d at 26. Relevant factors include
“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."
Gil-Quezada, 445 F.3d at 37 (citing Teeter, 257 F.3d at 26).
Several of those factors militate against invoking the
exception in this case.
First, González failed to raise this issue before the district
court, despite having ample opportunity to detail the reach and
3
U.S.S.G. § 4A1.2(a)(1) defines a “prior sentence” as “any
sentence previously imposed upon adjudication of guilt...for
conduct not part of the instant offense.”
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scope of the state conviction.4 We are wary of invoking the
miscarriage-of-justice exception when the defendant could have
raised an argument below but did not. See United States v.
Cardona-Diaz, 524 F.3d 20, 23-24 (1st Cir. 2008); see also United
States v. Edelen, 539 F.3d 83, 87 (1st Cir. 2008) (“If the mere
fact that a defendant has arguments he could potentially invoke on
appeal were allowed to invalidate a waiver, then appellate waivers
would become meaningless.”).
Second, González seeks to anchor his new claim to proceedings
in commonwealth court that postdate the sentencing in this case —
specifically, a recent state court probation revocation hearing
that concluded the commonwealth and federal charges were the
“same.” However, “post-sentencing maneuvers ordinarily cannot be
used as history-altering devices,” and thus this court strongly
disfavors granting relief on the basis of a record not before the
district court. See United States v. Mateo, 271 F.3d 11, 15 (1st
Cir. 2001).
4
Indeed, before the district court, González argued for
something like the reverse: that because the “instant offense”
included only the March and April 2006 drug sales detailed in the
plea agreement, it predated the state court’s imposition of
probation on July 11, 2006, and therefore adding two points
pursuant to U.S.S.G. § 4A1.1(d) was error. The district court
properly concluded that because the instant offense was a
conspiracy, it did not end until the December 20, 2006, indictment,
see United States v. Hernandez, 541 F.3d 422, 425 (1st Cir. 2008),
at which point González had already been placed on probation by the
commonwealth court.
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Third, it is debatable — if not doubtful — whether a different
calculation of González’s criminal history category would have
affected the final sentence. Because González failed to raise this
argument below, the plain error standard is incorporated into our
assessment of the miscarriage-of-justice element. Thus González
must show not merely that the error “could have changed the
outcome,” but rather that “the error must have done so.” United
States v. Albanese, 287 F.3d 226, 229 n.1 (1st Cir. 2002) (quoting
United States v. Sposito, 106 F.3d 1042, 1049-50 (1st Cir. 1997))
(applying plain error standard to alleged miscalculation of
criminal history category).
In this case, the sentencing agreement called for a minimum of
108 months’ imprisonment — regardless of the final criminal history
category. Moreover, “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.” Cardona-Diaz, 524 F.3d at 24.
Therefore, even if the district court had calculated a different
criminal history category, “we cannot be certain that the court
would not have imposed a similar sentence anyway.” Id. Indeed, it
may have imposed a higher sentence in accord with the plea
agreement’s recommendation of a 108-month minimum. González’s
failure to show the probability of a different sentence militates
against finding a miscarriage of justice. Id.
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Finally, we would also note that, on the merits of
González’s challenge, the July 11, 2006, commonwealth court
sentence included a five-year term of imprisonment for marijuana
charges following a November 4, 2004, arrest in Guayama, which
predates the beginning of the federal conspiracy by three months.
Thus, whether the probation was properly counted as a “prior
sentence” under U.S.S.G. § 4A1.2 is unclear at best.
Assessing these factors in total, we conclude that the
“limited character and gravity” of the alleged error, its uncertain
impact on the final sentence, the defendant’s failure to raise the
issue below, and the defendant’s reliance on post-sentence
proceedings suggest that there is no miscarriage of justice in
enforcing the waiver. See Cardona-Diaz, 524 F.3d at 24. Finding
all of the Teeter factors satisfied, we conclude that the waiver is
valid and enforceable.
Lastly, González argues that, even if the waiver is valid and
enforceable, this appeal does not come within its scope, because
the district court did not sentence the defendant according to the
plea agreement’s “terms and conditions.” Instead, the district
court acted with “faulty memory” in deviating from the sentencing
recommendation, and hence the waiver never took effect.
This argument has little traction. For one, the plea
agreement called only for a recommendation to be made to the judge
and, insofar as the agreement was presented to him, the
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recommendation was made. For another, the defendant’s counsel was
complicit in the mistake about the terms of the agreement,
misquoting the sentencing recommendation to omit the fact that 108
months was to be the minimum sentence. Finally, the defendant
obviously benefitted from the mistake. A district court that
imposes a sentence lower than that recommended by the plea
agreement, yet acquiesced to by both parties, cannot in any sense
be said to have exceeded the “terms and conditions” of the
agreement. See, e.g., Acosta-Roman, 549 F.3d at 4 (district court
exercising discretion that was contemplated by the plea agreement
did not exceed the “terms and conditions” of that agreement).
We therefore enforce the appeal waiver agreed to by the
parties.
De León-Martínez
We apply the same Teeter analysis to the contentions of
De León. De León does not dispute that the first two Teeter
factors are met in his case. Rather, he argues that enforcing the
waiver would be a miscarriage of justice, because the district
court impermissibly inserted itself into the plea bargaining
process, in violation of Fed. R. Crim. P. 11(c). De León points to
three such incidents that ostensibly violate the Rule, but none
withstands close scrutiny.
First, during a status conference, the court inquired
into the likelihood of a plea bargain and then stated, “I’m
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available to discuss the case any time. You just let me know.” We
fail to see how such an innocuous comment constitutes impermissible
intervention in the plea bargaining process, and in any event, “a
single brief remark during negotiations [has] been held not to
constitute impermissible judicial participation in plea
discussions.” United States v. Bradley, 455 F.3d 453, 462 (4th
Cir. 2006); see also United States v. Uribe-Londono, 409 F.3d 1, 4
(1st Cir. 2005) (holding there was no error when court “simply
inquired about the status of any plea negotiations”).
Second, at the change of plea hearing, after the parties
had reached a plea agreement, De León’s counsel voiced his concern
that, notwithstanding the plea agreement’s recommendation of a 30-
month minimum sentence, an impending change to the Guidelines might
yield a lower sentencing calculation. In response, the court
reiterated that it had final authority over the sentence, and
indicated it would schedule the sentencing hearing for November 15,
2007, after any change to the Guidelines had taken effect.
Informing the defendant about the court’s authority and
calendaring options after a plea agreement had been reached does
not constitute “participation” in the plea bargaining process in
any way. “Because the plea negotiations between the parties had
come to an end and the parties had signed a written plea agreement
before the district judge was involved, it is hard to characterize
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the judge's comments as participation in any [plea] discussions.”
United States v. Cannady, 283 F.3d 641, 644 (4th Cir. 2002).
Finally, at a hearing on De León’s motion for new counsel
conducted a week prior to sentencing, the court questioned the
defendant about his dissatisfaction with counsel, reiterated that
the court had ultimate sentencing authority over the defendant, and
praised the defendant’s counsel. Nothing forbids a court “from
questioning the defendant regarding the terms, consequences, and
acceptance of the plea agreement or from providing the defendant
with information relating to these matters,” and we perceive no
error here. See United States v. Carver, 160 F.3d 1266, 1269 (10th
Cir. 1998); see also United States v. Hicks, 531 F.3d 49, 53-54
(1st Cir. 2008) (court’s assurances about counsel’s competence did
not amount to judicial participation in plea negotiations).
Thus, we conclude that there is no miscarriage of
justice, and we enforce the appeal waiver agreed to by the parties.
III. Conclusion
Because both appellants agreed to valid and enforceable
waivers of their rights to appeal their sentences, we will enforce
the waivers and dismiss the appeals.
APPEALS DISMISSED.
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