United States Court of Appeals
For the First Circuit
No. 11-2399
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN CHAMBERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Raymond E. Gillespie on brief for appellant.
Randall E. Kromm, Assistant United States Attorney, and Carmen
M. Ortiz, United States Attorney, on brief for appellee.
March 13, 2013
SELYA, Circuit Judge. Defendant-appellant Steven
Chambers appeals from the district court's denial of his motion to
withdraw his guilty plea and to hold an evidentiary hearing in
connection therewith. But professed ignorance is not always bliss
and, as we explain below, the district court did not err in denying
these motions. By the same token, the defendant cannot make an end
run around a waiver of appeal provision to which he subscribed.
The relevant facts are straightforward. In October of
2009, the defendant sold cocaine base (crack cocaine) to a
government cooperator as part of a controlled buy that took place
in Roxbury, Massachusetts. A federal grand jury thereafter
returned an indictment charging the defendant with distributing
cocaine base. See 21 U.S.C. § 841(a)(1). The defendant initially
maintained his innocence. On March 14, 2011, he shifted direction
and entered a guilty plea pursuant to a binding plea agreement (the
Agreement). See Fed. R. Crim. P. 11(c)(1)(C).1
Roughly seven weeks later, the district judge received a
letter from the defendant requesting leave to withdraw his plea
because he had felt "rushed, pressured and coerced." It was not
until some six months thereafter, however, that the defendant
actually filed a motion to vacate his guilty plea. Although he
1
A so-called "C-type" plea agreement is an agreement that, if
accepted by the court, binds both the parties and the court to act
in accordance with its terms. See United States v. Rivera-
Martínez, 665 F.3d 344, 345 (1st Cir. 2011).
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requested an evidentiary hearing, he did not receive one; and in
due course the district court denied relief.
The court proceeded to sentencing on November 21, 2011.
The Agreement bound the court to impose a term of immurement of not
less than 72 months but not more than 120 months. Staying within
these parameters, the court sentenced the defendant to serve 90
months in prison. This timely appeal ensued.
In this venue, the defendant argues that his plea was
neither voluntary nor knowing because he did not realize at the
time he entered it that the sentencing guidelines were merely
advisory. In an attempt to bolster this argument, he asserts that
during the change-of-plea colloquy the district court failed to
comply with Federal Rule of Criminal Procedure 11(b)(1)(M), which,
among other things, requires the court to ensure that the defendant
understands the court's obligation to calculate the guideline
sentencing range (GSR). Before considering the merits of this
argument, we pause to iron out a potential wrinkle.
The Agreement contains a waiver of appeal provision.
Such a provision forecloses appellate review of many claims of
error. See, e.g., United States v. Nguyen, 618 F.3d 72, 74-76 (1st
Cir. 2010); United States v. Gil-Quezada, 445 F.3d 33, 36-39 (1st
Cir. 2006). But where, as here, a defendant enters a guilty plea
and agrees to waive his right to appeal, but then seeks to
challenge the district court's refusal to permit him to withdraw
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his plea, a reviewing court must "address the merits of [his]
appeal because his claim of involuntariness, if successful, would
invalidate both the plea itself and the waiver of his right to
appeal." United States v. Santiago Miranda, 654 F.3d 130, 136 (1st
Cir. 2011). We start there.
The defendant maintains that the court below erred in
denying his motion to vacate his guilty plea because he was not
aware of the advisory nature of the sentencing guidelines. As a
result, he says, he was unable to pursue "his lawful right to seek
a variant sentence."
This argument rests, in the first instance, on the
district court's ostensible failure to comply with the strictures
of Rule 11(b)(1)(M). While the defendant did not make this precise
argument below, he did argue more broadly that his plea was
involuntary and unknowing because he was unaware of the advisory
nature of the guidelines and thought that, unless he accepted the
plea bargain, a mandatory minimum sentence would apply. For the
sake of argument, we assume, favorably to the defendant, that the
greater subsumes the lesser. Accordingly, we put to one side the
government's insistence that the defendant's narrower contention is
forfeited and review that contention for abuse of discretion. See
United States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992).
A criminal defendant does not have an absolute right to
withdraw a guilty plea. See United States v. Mercedes Mercedes,
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428 F.3d 355, 359 (1st Cir. 2005); United States v. Negrón-Narváez,
403 F.3d 33, 36 (1st Cir. 2005). A previously tendered guilty plea
may be withdrawn if the defendant can establish, prior to
sentencing, that a "fair and just reason" for doing so exists.
Negrón-Narváez, 403 F.3d at 36 (quoting Fed. R. Crim. P.
11(d)(2)(B)). In considering such a claim, an inquiring court
"should focus on whether any of Rule 11's core concerns have been
implicated, that is, whether the plea, when entered, was voluntary,
intelligent, and knowing." Id.
The plea in this case was not a one-sided bargain: in
exchange for it, the government agreed to refrain from filing an
information under 21 U.S.C. § 8512 and also agreed to cap any
sentence at a point significantly below the GSR that otherwise
might have been anticipated.3 Despite these concessions, the
defendant challenges the colloquy that accompanied his change of
plea.
2
A section 851 information carries with it the potential to
boost the defendant's offense level and, thus, increase his
sentence. See 21 U.S.C. § 851; see also Prou v. United States, 199
F.3d 37, 40 (1st Cir. 1999) (explaining the operation of this
provision).
3
To illustrate, the probation department calculated the
defendant's GSR, independent of the Agreement, as 151-188 months.
Moreover, the record reflects that the defendant would have faced
a GSR of 262-324 months had a jury convicted him after the
government filed a section 851 information. In contrast, the
Agreement capped any possible sentence at 120 months.
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His most specific challenge focuses on Rule 11(b)(1),
which delineates certain requirements applicable to plea
colloquies. It provides in pertinent part:
Before the court accepts a plea of guilty[,
it] . . . must address the defendant
personally in open court. . . . [and] inform
the defendant of, and determine that the
defendant understands, the following:
. . . the court's obligation to calculate the
applicable sentencing-guideline range and to
consider that range, possible departures under
the Sentencing Guidelines, and other
sentencing factors under 18 U.S.C. § 3553(a)
. . . .
Fed. R. Crim. P. 11(b)(1)(M).
The defendant concedes that the rule does not explicitly
require the district court to state to a defendant in haec verba
that the sentencing guidelines are advisory. He urges, however,
that "the logical 'ramifications'" of the rule demand such a
statement.
In terms, Rule 11(b)(1)(M) does not mandate a talismanic
statement, in formulaic language, as to the advisory nature of the
sentencing guidelines. Because a district court need not follow a
precise script in ensuring the voluntariness of a defendant's
guilty plea, see United States v. Ward, 518 F.3d 75, 86 (1st Cir.
2008), we decline to read such a requirement into the rule.
Nevertheless, Rule 11(b)(1)(M) does require the court to
put the guidelines into a meaningful perspective. In the case at
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hand, the district judge's colloquy with the defendant satisfied
the imperatives of the rule.
Relatedly, the defendant voices a more expansive plaint.
Refined to bare essence, this plaint boils down to the proposition
that he thought the guidelines were mandatory and therefore — but
for his plea — the district court could not have sentenced him
below the bottom of the GSR. The record belies this proposition.
During the change-of-plea hearing, the district court
explained the mechanics of the guidelines. The court also verified
that the defendant understood the Agreement and its various
provisions. The court made it crystal clear that the defendant
could speak up if he did not understand anything and could change
his mind and stop the proceeding at any point before his plea was
accepted. The court clarified that no mandatory minimum sentence
would apply regardless of whether the government filed a section
851 information.
At the court's urging, the prosecutor explained the
various GSRs that might attach if the defendant decided to proceed
to trial. To be sure, the defendant initially exhibited some
confusion about the sentence that the court could impose absent the
Agreement; but the court took pains to dispel that confusion.
Among other things, the court made pellucid that the sentencing
ranges were not mandatory and that it could impose a sentence below
the GSR if it thought such a sentence advisable. Furthermore, the
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court emphasized that the ultimate sentencing decision was in its
sole discretion.
The defendant told the court that he understood the
Agreement and acknowledged that he had the benefit of "an excellent
lawyer." He stated unequivocally that his reason for entering into
the Agreement was to avoid the GSR that probably would result if
the government were to file the section 851 information. After the
confusion over potential sentencing ranges was resolved, the
defendant reiterated that he wished to proceed with his plea
because the capped ten-year maximum term of imprisonment limned in
the Agreement was attractive to him.
Viewed against this background, the defendant's claim
that he misunderstood the advisory nature of the guidelines strikes
us — as it did the court below — as a piece of revisionist history.
An objectively reasonable appraisal of what transpired at the
change-of-plea hearing leaves no room to doubt that the defendant
understood the district court's statements. Nothing in the
colloquy, fairly read, undermines the knowing and voluntary nature
of his plea.
We think it telling that the defendant manifested a
strong desire to avoid the higher GSRs that the prosecutor
outlined. Equally telling is the defendant's unconditional
acknowledgment of his comprehension of the district court's
thorough explanation of the Agreement, the situation, the
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guidelines, and the outcomes that might eventuate should he lose at
trial. A defendant's statements during a change-of-plea colloquy
ought to be binding upon him in the absence of good cause to
disregard them. See United States v. Gates, ___ F.3d ___, ___ [No.
10-2163, slip op. at 24]; Santiago Miranda, 654 F.3d at 138. The
defendant has not shown good cause here.
To cinch matters, an examination of Rule 11's core
concerns fully supports a denial of the defendant's motion. Such
an inquiry requires us to examine the totality of the circumstances
and to give weight to the timing of the attempted plea retraction,
the plausibility of the proffered reason for withdrawing the plea,
and the presence or absence of a claim of innocence. Mercedes
Mercedes, 428 F.3d at 359.
In this case, it was within the district court's
discretion to find that these factors, collectively, counseled in
favor of rejecting the attempt to withdraw the plea. The time
factor is somewhat of a wash. While there was a seven-month delay
between the defendant's guilty plea and his filing of a formal
motion to withdraw it, the defendant did indicate, within a matter
of seven weeks, that he was having second thoughts. As we already
have explained, the proffered reason for revoking the plea is
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implausible. And, finally, the defendant's motion did not embody
a claim of innocence.4
We have said before, and today reaffirm, that "a
defendant's lament that he misjudged the consequences of his guilty
plea, without more, is not a fair and just reason for setting the
plea aside." United States v. De Alba Pagan, 33 F.3d 125, 127 (1st
Cir. 1994). It follows that a defendant may not "withdraw his plea
merely because he discovers long after the plea has been accepted
that his calculus misapprehended the . . . likely penalties
attached to alternative courses of action." Brady v. United
States, 397 U.S. 742, 757 (1970).
These tenets are dispositive here. The district court
did not err in denying the defendant's motion to vacate his guilty
plea.
Relatedly, the defendant assigns error to the district
court's refusal to convene an evidentiary hearing on his plea-
withdrawal request. In such a situation, we review a district
court's denial of a motion for an evidentiary hearing for abuse of
discretion. See Santiago Miranda, 654 F.3d at 137. Appellate
review starts with the premise that "a [criminal] defendant is not
4
On appeal, the defendant optimistically suggests that the
record contains "an implicit assertion of legal innocence." This
suggestion appears to elevate hope over reason. See Gates, ___
F.3d at ___ [No. 10-2163, slip op. at 23-24]. The defendant
expressly admitted his guilt both in the Agreement and during the
change-of-plea hearing. His motion to vacate could have, but did
not, repudiate these admissions.
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entitled to an evidentiary hearing on every motion he chooses to
file." United States v. Gonzalez, 202 F.3d 20, 29 (1st Cir. 2000).
In connection with an attempted plea retraction, a
district court is required to grant a motion for an evidentiary
hearing only if, at a bare minimum, "the defendant alleges facts
which, if taken as true, would entitle him to relief." Santiago
Miranda, 654 F.3d at 136 (internal quotation marks omitted). No
evidentiary hearing is needed if the defendant's allegations "are
contradicted by the record or are inherently incredible and to the
extent that they are merely conclusions rather than statements of
fact." Id. at 137 (internal quotation marks omitted).
As noted above, the defendant's importuning that his plea
was involuntary and unknowing is contradicted by the record. The
district judge had everything that he needed in the paper record to
determine whether the defendant's guilty plea should be vacated.
Consequently, it was within his discretion to deny the defendant's
motion for an evidentiary hearing.
The defendant's next claim of error is no more robust.
The Agreement contains a waiver of appeal provision. The defendant
concedes that his appeal falls within the literal scope of this
provision, but asserts that the waiver of appeal is nugatory
because the Agreement itself is invalid. As a fallback, he
contends that enforcement of the waiver would result in a
miscarriage of justice.
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A waiver of appeal in a criminal case, entered knowingly
and voluntarily, is generally enforceable. See Nguyen, 618 F.3d at
74; United States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001). To
qualify, the waiver must be stated clearly and its scope must be
definite. See Teeter, 257 F.3d at 24. In addition, the district
court must "question the defendant specifically about [his]
understanding of the waiver provision and adequately inform [him]
of its ramifications." Id. Even if these criteria are satisfied,
a waiver of appeal may be disregarded if enforcing it would cause
a miscarriage of justice. Id. at 25.
We need not tarry over the defendant's argument that the
waiver of appeal is nugatory because the Agreement is invalid.
While such an argument would have considerable bite if its premise
were correct, see United States v. Ortiz-García, 665 F.3d 279, 285
(1st Cir. 2011); Santiago Miranda, 654 F.3d at 136, we already have
defenestrated the defendant's claim that the Agreement itself is
invalid. The defendant's piggybacked claim of error is, therefore,
untenable.
This leaves the defendant's more general asseveration:
that enforcement of his waiver of appeal would result in a
miscarriage of justice. To determine whether a waiver of appeal
effects a miscarriage of justice, we consider "the character,
clarity, and gravity of the claim of error, its impact on the
defendant, any possible prejudice to the government that might
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accompany a refusal to honor the waiver, and the extent to which
the defendant can fairly be said to have acquiesced in the result."
Nguyen, 618 F.3d at 75. The miscarriage of justice exception is
strong medicine. Consequently, it should "be applied sparingly and
without undue generosity." Teeter, 257 F.3d at 26. A showing of
garden-variety error will not suffice: "[t]riggering the
miscarriage of justice exception requires, at a bare minimum, an
increment of error more glaring than routine reversible error."
Nguyen, 618 F.3d at 75.
To the extent that the defendant bases his miscarriage of
justice claim on his supposed misapprehension of the advisory
nature of the sentencing guidelines, our previous discussion is
dispositive. What remains — his insistence that the government's
case against him "was less than overwhelming" — is nothing more
than empty rhetoric, debunked by the defendant's own admissions
during the change-of-plea colloquy. The short of it is that the
defendant has not shown any error, let alone the glaring strain of
error needed to fuel a miscarriage of justice finding.
There is one loose end. In advocating for the withdrawal
of his guilty plea, the defendant seems to suggest that he received
ineffective assistance of counsel. Because the waiver of appeal
provision contains an explicit exception for challenges based on
ineffective assistance of counsel, we comment briefly on this
suggestion. See United States v. McCoy, 508 F.3d 74, 77 (1st Cir.
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2007) (explaining that "[e]ven a knowing and voluntary appeal
waiver only precludes appeals that fall within its scope").
The defendant's ineffective assistance claim (to the
extent that one exists) was not raised below. Although "[t]he
Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel," Scarpa v. Dubois, 38 F.3d 1, 8
(1st Cir. 1994), a defendant lacks "an absolute right" to bring
such a "claim for the first time on direct review of a conviction
or sentence," United States v. Rivera-Orta, ___ F.3d ___, ___ [No.
11-1927, slip op. at 9].
"We have held with a regularity bordering on the
monotonous that fact-specific claims of ineffective assistance
cannot make their debut on direct review of criminal convictions,
but, rather, must originally be presented to, and acted upon by,
the trial court." United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir. 1993). This principle governs here.
We need go no further. For the reasons elucidated above,
we uphold the judgment of the district court; without prejudice,
however, to the right of the defendant, should he so choose, to
raise an ineffective assistance of counsel claim by way of a
petition for collateral review. See 28 U.S.C. § 2255.
So Ordered.
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