United States Court of Appeals
For the First Circuit
No. 16-2152
UNITED STATES OF AMERICA,
Appellee,
v.
SANTOS MARTE-DE LA CRUZ,
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, Thompson, and Kayatta,
Circuit Judges.
Robert Herrick and Nicholson Herrick LLP, on brief for
appellant.
Mainon A. Schwartz, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
December 4, 2017
KAYATTA, Circuit Judge. Pursuant to a plea agreement,
Santos Marte-de la Cruz pled guilty to attempted illegal reentry
into the United States following removal subsequent to a conviction
for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2).
He was sentenced to thirty-three months' imprisonment. He now
appeals his conviction and sentence on the basis that his prior
conviction was not an aggravated felony or crime of violence.
Because Marte-de la Cruz waived his right to appeal as part of his
plea agreement, we dismiss his appeal.
I. Background
We draw the facts from the parties' agreed-upon
statement, attached to the plea agreement. In January 2016, a
United States Coast Guard patrol intercepted a vessel travelling
toward Puerto Rico. Marte-de la Cruz was on board. He identified
himself as a Dominican Republic national and presented no
documentation that would permit him to enter the United States or
remain therein. The authorities subsequently learned that in 2010,
Marte-de la Cruz had been charged with robbery in the Superior
Court of San Juan, Puerto Rico, and sentenced to five years'
imprisonment. Subsequent to that conviction, he was served with
an order of removal and on September 24, 2014, he was removed from
the United States.
On January 13, 2016, a criminal complaint issued against
Marte-de la Cruz. The same day, counsel was appointed to represent
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him. On May 2, 2016, following Marte-de la Cruz's waiver of his
right to an indictment, the United States filed a criminal
information, charging Marte-de la Cruz with violating 8 U.S.C.
§ 1326(b)(2), which criminalizes re-entry or attempted re-entry
into the United States by an individual who was previously removed
following a conviction for an aggravated felony. The same day,
Marte-de la Cruz filed a plea agreement.
The plea agreement contained the following provisions:
First, Marte-de la Cruz agreed to plead guilty to one count of
attempted illegal reentry following removal subsequent to a
conviction for an aggravated felony, in violation of
section 1326(b)(2). Second, the parties agreed to recommend that
Marte-de la Cruz's total offense level be set at nineteen. They
arrived at this figure by starting with a base offense level of
eight, adding sixteen levels for the fact that Marte-de la Cruz
had been previously removed following a conviction for a crime of
violence, and subtracting three levels for acceptance of
responsibility and two more levels for participation in a fast-
track plea program. Third, Marte-de la Cruz agreed "that the facts
contained in the attached government's version of facts are true
and correct, and that had the matter proceeded to trial, the United
States would have proven those facts beyond a reasonable doubt."
Finally, the agreement stated that Marte-de la Cruz "knowingly and
voluntarily waive[d] the right to appeal the judgment and sentence
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in this case, provided that [he was] sentenced in accordance with
the terms and conditions set forth in the Sentence Recommendation
provisions of th[e] Plea Agreement." The agreement was signed by
both Marte-de la Cruz and his attorney, and contained further sworn
statements from each of them stating that Marte-de la Cruz's
attorney had discussed the plea agreement with him in Spanish,
that it had been translated for Marte-de la Cruz, and that Marte-
de la Cruz "ha[d] no doubts as to the contents of the agreement."
At his change-of-plea hearing, Marte-de la Cruz again
affirmed that the plea agreement and attached document had been
translated, that his attorney had explained the documents to him,
and that he understood the terms of the agreement and attached
document. The government was asked to describe the essential terms
of the agreement, and stated that the parties had agreed to a base
offense level of eight and an increase of sixteen levels "because
the Defendant was previously removed after a conviction for a crime
of violence," accompanied by reductions for acceptance of
responsibility and his participation in a fast-track disposition
program, for a total offense level of nineteen. Marte-de la Cruz's
attorney was asked if he agreed with the government's
representations and Marte-de la Cruz himself was asked if the
government had accurately described the agreed-upon sentencing
recommendations; both answered in the affirmative. The magistrate
judge also asked: "are you pleading guilty of your own free will
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because you are, in fact, guilty?" Again, Marte-de la Cruz
responded in the affirmative. Later in the hearing, the magistrate
judge stated: "I want to point out to you that . . . your plea
agreement[] contain[s] a waiver-of-appeal paragraph, and, in that,
you are agreeing to waive your right to appeal both the judgment
and the sentence." He then asked if Marte-de la Cruz "voluntarily
agree[d] to waive [his] right to appeal both [his] conviction and
[his] sentence," and Marte-de la Cruz again responded that he was
aware of this waiver and agreed to it. The magistrate judge
specifically noted that Marte-de la Cruz had been charged with
attempting to enter the United States following removal
"subsequent to a conviction for an aggravated felony" and Marte-
de la Cruz acknowledged that he was pleading guilty to this
specific offense. The magistrate judge then asked the government
to state its version of the facts, which included the statement
that "background checks . . . reveal[] that . . . Marte-de la Cruz
. . . was arrested and charged for robberies, and, on March 24,
2010, he was sentenced to five years imprisonment in the Superior
Court of San Juan, . . . making the crime an aggravated felony
under the Immigration and Nationality Act." Following this
statement, the magistrate judge asked whether Marte-de la Cruz
"agree[d] with and admit[ted] to all of the facts the Prosecutor
just described." Again, Marte-de la Cruz answered in the
affirmative. The magistrate judge recommended that the district
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court accept the plea of guilty and the district court accepted
the recommendation.
The matter proceeded to sentencing on August 18, 2016.
At sentencing, the district court expressed concern about Marte-
de la Cruz's prior conduct because his prior conviction "was not
only a burglary, but a burglary entering into a house of a lady
and pointing a knife at her." The district court was troubled
that Marte-de la Cruz had been permitted to take part in the fast-
track plea program given his prior conduct, but the government
noted that it was aware of the conduct and Marte-de la Cruz's
counsel stated "the criminal complaint reflects the fact that the
government knew about the robbery conviction -- actually, an
aggravated felony." Following this reassurance, the district
court sentenced Marte-de la Cruz to thirty-three months'
imprisonment. It also told Marte-de la Cruz that "[i]n this
particular case, you agreed that if the Court sentenced you to
Level 19 you were waiving your right to appeal. And in this case,
the Court has sentenced you not only to Level 19, but also to the
lower end of 19, which is what the parties specifically agreed."
Four days later, Marte-de la Cruz filed a notice of
appeal from his conviction and sentence.
II. Discussion
Marte-de la Cruz's argument on appeal is that his prior
offense was not an aggravated felony or crime of violence, despite
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agreement by the parties that it was. Specifically, he argues
that he was convicted of second-degree burglary, not robbery, which
he contends is not an aggravated felony or crime of violence. He
argues that the allegedly erroneous determination that his prior
conviction was for robbery resulted in two flaws in his conviction
and sentence. First, if his prior offense was not an aggravated
felony (and he submits that Puerto Rico burglary is not), then he
was not guilty of violating 8 U.S.C. § 1326(b)(2), which only
applies to those removed following a conviction for such a felony.
Second, if his prior offense was not a crime of violence under the
relevant portion of the sentencing guidelines (again, he argues
that Puerto Rico burglary is not such a crime), his offense level
was inappropriately increased, even if his conviction itself were
valid.
By its terms, the express appeal waiver contained in
Marte-de la Cruz's plea agreement clearly applies, a point he does
not contest. He nonetheless argues that it should not be enforced.
We disagree.
Presentence waivers of appellate rights are
"presumptively valid (if knowing and voluntary)." United States
v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001). Here, there is no
doubt that Marte-de la Cruz knew he was waiving his appellate
rights and did so voluntarily: "[T]he written plea agreement
contains a clear statement elucidating the waiver and delineating
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its scope, and . . . the district court inquired specifically at
the change-of-plea hearing into any waiver of appellate rights."
Sotirion v. United States, 617 F.3d 27, 33 (1st Cir. 2010)
(internal quotation marks and alterations omitted). Marte-de la
Cruz suggests that "[d]efense counsel's rush to get a plea
agreement signed before he ascertained the nature of Marte-de la
Cruz's prior conviction casts serious doubt on any suggestion that
Marte-de la Cruz's appeal waiver was knowing and voluntary"
(internal quotation marks and alterations omitted). But beyond
this perfunctory suggestion, he offers no compelling case that
there was such a rush, let alone facts sufficient to rebut the
strong presumption, supported by the explicit nature of the waiver
and the magistrate judge's repeated cautions, that the waiver was
knowing and voluntary.
We nonetheless "retain[] inherent power to relieve the
defendant of the waiver, albeit on terms that are just to the
government, where a miscarriage of justice occurs." Teeter, 257
F.3d at 25–26. We have said that this exception is to be "applied
sparingly and without undue generosity." United States v. Gil-
Quezada, 445 F.3d 33, 37 (1st Cir. 2006) (quoting Teeter, 257 F.3d
at 26). It requires "a strong showing of innocence, unfairness,
or the like." Id. In evaluating whether a miscarriage of justice
has occurred, "we consider, among other things, the clarity of the
alleged error, its character and gravity, its impact on the
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defendant, any possible prejudice to the government, and the extent
to which the defendant acquiesced in the result." Id. In this
case, however, it appears unlikely that error occurred at all.
Marte-de la Cruz's entire case on appeal hinges on his
contention that "[t]he parties and, at times, the probation officer
labored under the false impression that Marte-de la Cruz's earlier
conviction had been for robbery," when in fact, it was for second-
degree burglary. The government's version of the facts, the truth
of which Marte-de la Cruz expressly agreed to in his plea
agreement, stated that Marte-de la Cruz's prior conviction was for
robbery and described this robbery as an aggravated felony. At
the change-of-plea hearing, the court and the government
repeatedly described Marte-de la Cruz's prior offense as robbery.
They even specifically described this robbery as an aggravated
felony, a characterization which Marte-de la Cruz affirmatively
agreed was correct when he acknowledged the truth of the
government's version of the facts. And the presentence report
(PSR) likewise used the term "robbery" on multiple occasions.
Against all of this, Marte-de la Cruz points to other
portions of the PSR, most notably one which describes his
conviction as one for "2nd degree burglary," and the district
court's use of similar language. However, the same portion of the
PSR lists the statute of conviction as Article 199 of the Puerto
Rico Penal Code. Article 199 is the aggravated robbery statute
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and says nothing about burglary, whatever degree. See 33 L.P.R.A.
§ 4827. The PSR further states, in describing the facts
surrounding Marte-de la Cruz's initial conviction, that he had
"through the use of violence and/or intimidation, t[aken]
property." This is the language of the Puerto Rico robbery
statute, not the burglary statute. Compare 33 L.P.R.A. § 4826
(entitled "Robbery" and reading "Any person who unlawfully takes
personal property belonging to another in the immediate presence
of said person and against his/her will by means of force or
intimidation shall incur a third degree felony") with 33 L.P.R.A.
§ 4831 (entitled "Burglary" and reading "Any person who enters a
dwelling, building or other construction or structure . . . with
the purpose of committing any crime involving unlawful taking or
a felony shall incur a misdemeanor"). Thus, far from establishing
that Marte-de la Cruz was convicted of burglary, the record
actually contains multiple corroborating indications that his
conviction was for robbery, as the plea agreement and subsequent
court proceedings assumed. It appears likely that there was no
error at all. In any event, there was certainly no clear and grave
error sufficient to constitute a miscarriage of justice.
III. Conclusion
Marte-de la Cruz agreed to waive his right to appeal his
conviction and sentence in this case, assuming he received a
certain sentence. He received that sentence, triggering the
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waiver. The waiver was made knowingly and voluntarily, and thus
is valid. And he has given us no reason to conclude that enforcing
the waiver would work a miscarriage of justice; indeed, the only
error of which he complains was likely not error at all.
Accordingly, the waiver bars this appeal and the appeal is
dismissed.
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