United States Court of Appeals
For the First Circuit
No. 17-1506
UNITED STATES OF AMERICA,
Appellee,
v.
FRANKLYN MORILLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Steven A. Feldman and Feldman and Feldman on brief for
appellant.
John J. Farley, Acting United States Attorney, and Seth R.
Aframe, Assistant United States Attorney, on brief for appellee.
December 4, 2018
BOUDIN, Circuit Judge. In October 2016, Franklyn
Morillo pled guilty in New Hampshire district court to conspiracy
to distribute and possess with intent to distribute oxycodone and
cocaine. In May 2017, the district judge sentenced Morillo to 168
months in prison. Morillo now appeals to contest his sentence.
Morillo challenges the application of particular sentencing
enhancements and the imposition of certain supervised-release
conditions.
At the threshold, the government says that Morillo has
no right to contest his sentence because his guilty plea, the
result of a plea bargain with the government, includes an express
waiver of his right to appeal his conviction or sentence if his
sentence rests on a base offense level no lower than twenty six
and no higher than thirty.1 At sentencing, the district judge
ruled that Morillo had a base offense level of thirty, thus
satisfying the condition on which the waiver rested. Morillo
responds that the district judge (allegedly) "failed to conduct
any meaningful interrogation on the waiver."
1 The government also contends that Morillo forfeited his
right to contest the supervised-release conditions because he
failed to confront head-on in his brief the waiver of appeal with
respect to the supervised-release conditions. United States v.
Miliano, 480 F.3d 605, 608 (1st Cir. 2007). We find that Morillo
did contest the waiver both generally in his opening brief and
specifically in challenging the supervised-release conditions.
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In 1999, a new rule of criminal procedure became
effective, now re-codified and designated Federal Rule of Criminal
Procedure 11(b)(1)(N). Rule 11(b)(1)(N) requires that when a
defendant seeks to waive his or her right to appeal a sentence
when pleading guilty--today a common provision sought by the
government in plea bargains--the judge "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).
A year and a half later, this court, in an opinion by
Judge Selya, addressed several legal questions relating to the new
rule. United States v. Teeter, 257 F.3d 14 (1st Cir. 2001). By
a formulation repeatedly cited by this court thereafter, Teeter
requires that appeal waivers meet three criteria:
- First, the written waiver must comprise "a clear
statement" describing the waiver and specifying its scope. Teeter,
257 F.3d at 24.
- Second, "[m]indful" of Rule 11(b)(1)(N), the record
must show that the judge's interrogation "suffice[d] to ensure
that the defendant freely and intelligently agreed to waive [his
or] her right to appeal [his or] her forthcoming sentence." Id.
- Third, even if the plea agreement and the change of
plea colloquy are satisfactory, the reviewing court retains
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discretion to refuse to honor a waiver if denying a right to appeal
would "work a miscarriage of justice." Id. at 25.
Next, in United States v. Borrero-Acevedo, 533 F.3d 11
(1st Cir. 2008), Judge Lynch resolved another appeal from a
sentence following a defendant's waiver of his right to appeal.
At the change-of-plea proceeding, the magistrate judge had failed
to comply with Rule 11(b)(1)(N). On appeal, the defendant
attempted to avoid the effect of his appeal waiver because of the
judge's failure to ask him specifically about the waiver; but the
defendant had not made a contemporaneous objection to this failure.
Applying Supreme Court plain-error decisions, Judge
Lynch ruled that when a defendant fails to preserve an alleged
error regarding his appeal-waiver colloquy, the defendant must
show "a reasonable probability that he would not have entered the
plea had the error not been made." Borrero-Acevedo, 533 F.3d at
13–14. Borrero failed to make this showing, so the waiver
foreclosed the appeal. Id. at 17–18.
While Teeter's tripartite test remains in force in this
circuit, Borrero-Acevedo's plain-error test applies to cases, such
as Morillo's, where a defendant seeks to avoid the effect of his
appeal waiver because of an unpreserved Rule 11(b)(1)(N) error.
Even in such cases, Teeter's miscarriage-of-justice exception
continues to apply. Sotirion v. United States, 617 F.3d 27, 36–
37 (1st Cir. 2010). Where a defendant claims his waiver was not
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made knowingly or voluntarily for reasons other than an unpreserved
Rule 11(b)(1)(N) error, Teeter's three-part inquiry alone governs.
Id. at 34 n.6.
Here, Morillo's appeal waiver bars his challenges to his
sentence, including both the sentencing enhancements and the
supervised-release conditions.2 He fails to satisfy the Borrero-
Acevedo plain-error test because no error--plain or otherwise--
occurred in the appeal-waiver colloquy. An appeal-waiver
inquiry's adequacy depends on the specifics of the case, including
questions asked or statements made by the judge, characteristics
of the defendant, and evidence that the defendant understood that
he was waiving his right to appeal as specified by the waiver.
The court explained to Morillo: "[U]nder the terms of
your agreement with the government you've waived or given up your
right to file . . . a direct appeal of your conviction or sentence
. . . but with four notable exceptions." The court identified for
Morillo the circumstances in which he could appeal despite the
waiver, none of which applies here. The court then asked whether
Morillo had "discussed each term of the written plea agreement"
with his attorney, and Morillo said that he had. The plea
2 Supervised-release conditions are part of "the sentence"
and so are embraced by an enforceable waiver of the right to appeal
guilt and sentence. United States v. Santiago, 769 F.3d 1, 7 (1st
Cir. 2014).
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agreement included a clear statement explaining the appeal waiver
and its scope.
Morillo's brief poses lines of questioning employed in
other cases assessing the adequacy of appeal-waiver colloquies but
not used in this one, arguing that these alternatives show the
colloquy in his case to be faulty; but the number of possible
questions is infinite, and this mustering of questions asked by
other judges does not itself show any inadequacy in the judge's
colloquy in this case. It is the defendant's task to identify a
substantive flaw--not merely to compare this colloquy with others.
Nothing suggested the waiver deserved enhanced scrutiny.
Morillo was not an inexperienced youth on the fringes of a
conspiracy but the leader of a major drug operation who has some
college education. Morillo graduated from a Massachusetts high
school and apparently studied for one year at a community college
to pursue a career in education. Further, the plea bargain offered
sufficient advantages in limiting his exposure in the face of
strong evidence of guilt.3 Nothing suggested that Morillo had been
coerced or offered other inducements warranting further inquiry.
3 The evidence included multiple witnesses against Morillo as
well as co-conspirators he supervised. He also had a substantial
criminal history and committed the present offense while on
probation. In exchange for Morillo's guilty plea, the government
agreed to sentencing stipulations: First, Morillo's base offense
level would be no lower than twenty six but no higher than thirty.
Second, the government would not oppose a reduction in Morillo's
adjusted offense level based upon his acceptance of personal
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Even had the colloquy been plain error, Morillo fails to
meet the prejudice standard set forth in Borrero-Acevedo. After
Borrero-Acevedo, a defendant asserting an unpreserved claim of a
Rule 11(b)(1)(N) error must establish that he would not have pled
guilty but for the error in the colloquy. 533 F.3d at 13–14.
Given the strong evidence of Morillo's guilt and the substantial
reduction in the sentence that the plea bargain made available,
Morillo cannot meet this standard.
Morillo's last resort is Teeter's miscarriage-of-justice
exception. When applying the exception, the court on appeal
considers whether enforcing the waiver with respect to each claim
would risk a miscarriage of justice. United States v. Cabrera-
Rivera, 893 F.3d 14, 23–29 (1st Cir. 2018).
Teeter's miscarriage-of-justice exception applies only
in "egregious cases." Teeter, 257 F.3d at 25. Morillo's claim
that the district court abused its discretion by imposing
particular sentencing enhancements is precisely a "garden-variety"
claim outside the scope of the miscarriage-of-justice exception.
Id. at 26. And Morillo's claim that the supervised-release
conditions are inconsistent with the 2016 guidelines amendments is
simply mistaken: far from being inconsistent, the conditions are
responsibility for the offense. But for the plea bargain, a much
longer sentence could easily have been imposed and almost certainly
would have been.
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identical to the amendments. Morillo's appeal waiver is
enforceable and bars his appeal.
Affirmed.
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