United States Court of Appeals
For the First Circuit
No. 13–2525
UNITED STATES OF AMERICA,
Appellee,
v.
MARCOS ROJAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Raymond E. Gillespie on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and John A. Mathews II, Assistant United States Attorney,
on brief for appellee.
March 11, 2015
BARRON, Circuit Judge. After reaching a plea agreement
with the government, Marcos Rojas pled guilty to failing to
register as a sex offender as required by the Sex Offender
Registration and Notification Act, or SORNA, 18 U.S.C. § 2250(a).
The District Court sentenced Rojas to twelve months in prison. The
District Court also sentenced Rojas to ten years of supervised
release and imposed a number of special conditions of supervised
release. On appeal, Rojas challenges three of those conditions: a
requirement that he participate in a sex offender treatment
program, a requirement that he participate in a mental health
treatment program, and a prohibition on the possession of
pornography unless approved by Rojas's probation officer.
We need not reach the substance of Rojas's appeal,
however, because of the "waiver of appeal" provision in Rojas's
plea agreement. Rojas concedes that he agreed knowingly and
voluntarily to accept that provision. See United States v. Teeter,
257 F.3d 14, 24 (1st Cir. 2001) ("The baseline for any waiver of
rights is that the defendant enter into it knowingly and
voluntarily."). And Rojas does not argue that, if the waiver
applies to his arguments in this appeal, the sentencing errors he
alleges amount to such a "miscarriage of justice" that we must
"relieve [him] of the waiver." Id. at 25. Rather, Rojas's sole
argument is that the scope of the waiver does not encompass the
challenges he brings on this appeal.
-2-
Rojas grounds that argument in the text of the waiver of
appeal as read against the text of the plea agreement.
Specifically, the plea agreement stated that the parties were
making no recommendation regarding conditions of supervised
release. And the waiver then provided:
[I]f [the District] Court accepts this Plea
Agreement and sentences the defendant
according to its terms, conditions and
recommendations, the defendant then waives and
permanently surrenders his right to appeal the
judgment and sentence in this case.
Rojas accordingly argues that the sentence -- by imposing
conditions of supervised release -- could not have been "according
to" the plea agreement's "terms, conditions and recommendations."
And thus, Rojas argues, the waiver cannot bar him from appealing
the conditions of supervised release.
Rojas's proposed construction would appear to render the
entirety of the waiver ineffective upon the imposition of any
condition of supervised release, as the waiver's text does not
appear to permit a defendant to appeal only those aspects of a
sentence that are not "according to" the plea agreement. And it is
hard to believe that the government, in entering into the plea
agreement, intended for the waiver to be contingent in that way.
But Rojas's argument is also unpersuasive for another
reason. He concedes that, if the plea agreement did not
specifically state that it contained no recommendation regarding
conditions of supervised release, then the waiver would apply and
-3-
bar this appeal. And he must concede as much, because, as Rojas
acknowledges, we have held that this exact waiver language
precludes the appeal of conditions of supervised release when a
plea agreement says nothing about them. See, e.g., United States
v. Santiago, 769 F.3d 1, 7 (1st Cir. 2014); United States v.
Rivera-López, 736 F.3d 633, 634-35 (1st Cir. 2013).
But if that is so, this case is no different. The plea
agreement here merely included a clause that stated expressly what
the silence in those cases made equally clear -- that the plea
agreement made no recommendation regarding terms of supervised
release. In imposing conditions of supervised release, therefore,
the District Court imposed a sentence that was still "according to
the terms, conditions and recommendations" of that agreement. And
because, as Rojas concedes, his appeal of the supervised release
conditions is an appeal of the "judgment and sentence" in his case,
see Santiago, 769 F.3d at 7, this appeal falls within the scope of
the waiver. Rojas's appeal is therefore dismissed.
-4-