United States v. Cardona-Diaz

United States Court of Appeals
For the First Circuit

No. 06-2315

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCISCO CARDONA-DÍAZ,

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, Circuit Judge,
Wallace,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Raúl S. Mariani-Franco, for appellant.
George A. Massucco-LaTaif, Assistant United States Attorney,
with whom Germán A. Rieckehoff, Assistant United States Attorney,
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief for appellee.

April 17, 2008

*
Of the Ninth Circuit, sitting by designation.
 WALLACE, Senior Circuit Judge. Appellant Cardona-Díaz

(Cardona) challenges the 87-month sentence he received after

pleading guilty to conspiring to distribute a controlled substance.

We have jurisdiction pursuant to 18 U.S.C. § 3742(a). We dismiss

Cardona’s appeal, because it is barred as a result of the waiver of

appeal to which he consented in his plea agreement.

I.

From approximately the year 2000 until he was indicted in

May of 2005, Cardona was part of a group that sold cocaine, cocaine

base (crack), and marijuana around Barrio Corazón in Guayama,

Puerto Rico. Cardona was a seller for one of the ringleaders. In

October 2003, Cardona and other co-conspirators sold 36 grams of

crack to a Drug Enforcement Administration (DEA) confidential

informant.

Cardona subsequently was indicted by a District of Puerto

Rico Grand Jury and charged with violating 21 U.S.C. §§ 841(a)(1)

and 846, and 18 U.S.C. § 2. Count One alleged that from about 2000

to the date of the indictment, Cardona conspired to possess with

intent to distribute five kilograms or more of cocaine and fifty

grams or more of crack. Count Three charged that, on or about

October 16, 2003, Cardona and a co-defendant intentionally and

unlawfully distributed five grams or more of crack.

On March 7, 2006, Cardona pled guilty to both of those

counts. The terms of Cardona’s plea agreement provided for a base

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offense level of thirty, pursuant to U.S. Sentencing Guideline §

2D1.1(5), “for possession and conspiracy to possess with intent to

distribute between three point five (3.5) and five (5) kilograms of

cocaine and between thirty-five (35) and fifty (50) grams of

cocaine base.” [Plea Agreement, DE 147, p. 5] Cardona agreed to

both of these drug amounts in the plea agreement and at his change-

of-plea hearing. The agreement also stipulated a three-level

reduction for acceptance of responsibility, establishing a total

offense level of 27 and a sentencing range of 70-87 months

imprisonment. The parties did not stipulate to Cardona’s criminal

history category, but the Presentence Report assigned him a

criminal history category of I. The parties also agreed that no

further adjustments or departures were applicable, and that the

government would recommend that the court sentence Cardona to 87

months imprisonment.

Though the plea agreement stated only that the government

would recommend a sentence of 87 months imprisonment, during the

sentencing hearing, the district court was under the mistaken

impression that Cardona and the government had negotiated for and

agreed to a sentence of 87 months. However, neither party objected

to the district court’s characterization of the 87-month sentence

as that “agreed upon” by the parties. Ultimately, the district

court adopted the parties’ stipulations and sentenced Cardona to 87

months imprisonment.

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 II.

The issue before us is whether Cardona’s appeal is barred

by the waiver contained in his plea agreement. The government

urges us to enforce that waiver, as, “under ordinary circumstances,

a knowing, voluntary waiver of the right to appeal from a sentence,

contained in a plea agreement, ought to be enforced.” United

States v. Teeter, 257 F.3d 14, 23 (1st Cir. 2001) (footnote

omitted). In determining whether to enforce the waiver, we make

three inquiries. First, we confirm whether “the written plea

agreement signed by the defendant contains a clear statement

elucidating the waiver and delineating its scope.” Id. at 24.

Second, we determine whether the district court questioned the

defendant specifically about his understanding of the waiver

provision and its ramifications. Id. Third, we consider whether

enforcing the waiver would work a miscarriage of justice. Id.

at 25-26.

Cardona concedes that the first two parts of the Teeter

test are met. The plea agreement clearly states that, as long as

the court sentenced Cardona according to the terms and conditions

of the plea agreement, Cardona would “waive[] and surrender[] his

right to appeal the judgment and sentence in this case.” [Plea

Agreement at 8] Moreover, at Cardona’s change-of-plea hearing, the

court directed Cardona to the language of the waiver in the plea

agreement and asked him if he understood the waiver, to which he

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responded “yes.” [Change of Plea transcript at 9] The court also

reminded Cardona of the waiver of appeal at sentencing. Cardona’s

waiver of his right to appeal was therefore both knowing and

voluntary, and will only be set aside if enforcing the waiver would

work a miscarriage of justice. See id.

We have consistently warned that “the miscarriage of

justice reservation ‘will be applied sparingly and without undue

generosity.’” United States v. De-La-Cruz Castro, 299 F.3d 5, 13

(1st Cir. 2002) (quoting Teeter, 257 F.3d at 26). Among the

factors we consider in determining whether enforcement would lead

to a miscarriage of justice are “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.” United States v. Gil-Quezada,

445 F.3d 33, 37 (1st Cir. 2006) (citing Teeter, 257 F.3d at 26).

We now consider whether honoring the waiver to deny his appeal

would work a miscarriage of justice.

Cardona’s only colorable claim is that the sentencing

court’s erroneous belief that Cardona had agreed to a sentence of

87 months requires that we remand for resentencing.1 At the

1
In his brief, Cardona argues that the district court
improperly applied the Sentencing Guidelines in a mandatory
fashion, failed to consider adequately the sentencing factors
contained in 18 U.S.C. § 3553, created unwarranted sentencing
disparities in relying on the crack-cocaine guideline range, and
violated the parsimony principle by imposing a sentence greater
than necessary to satisfy section 3553 goals. However, these

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outset, we emphasize that neither Cardona nor the government raised

this issue in the initial briefing, and did so only after a

supplemental briefing order was issued. Nor did the parties object

at the sentencing hearing; in fact, both the government and Cardona

apparently went along with the district court’s assertion that

Cardona had agreed to an 87-month sentence, despite the fact that

Cardona’s plea agreement stated only that the government would

recommend an 87-month sentence.

The court’s misunderstanding of the agreement reached

between Cardona and the government is troubling. The court

emphasized that a major factor in its decision to impose an 87-

month sentence was “that the parties bargained for 87 months,” and

stated that “the court see[s] no reason why the court should at

this time depart from what the parties agreed. This was a

negotiation. . . . So, therefore, I am going to follow what the

parties originally bargained.” [Sent. Tr. 27-29]

The government made no effort to correct the district

court's misunderstanding. In fact, the government arguably misled

the court when it stated that the 87-month sentence was "what was

bargained for and agreed to by the parties." [Sent. Tr. 24] We are

garden-variety challenges to Cardona’s sentence are too trivial to
warrant discussion in light of Cardona’s waiver of appeal.
Although we do not foreclose the possibility that the errors
Cardona alleges could in other circumstances rise to the level of
a miscarriage of justice, our review of the record in this case
satisfies us that there was no such miscarriage here.

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equally dismayed that Cardona's own counsel was silent in the face

of the misunderstanding.

However, it has not been demonstrated to our satisfaction

that this error would work a miscarriage of justice if we were not

to remand. Cardona’s waiver of his right to appeal in his plea

agreement, his failure to object to the district court’s

misunderstanding of the plea agreement at the hearing (and apparent

acquiescence in that misunderstanding), and his failure to raise

the issue on appeal until directed by us, establish a very high

hurdle for him to show the kind of error that would permit us to

entertain his argument and consider reversal. He cannot overcome

that hurdle in this appeal.

As indicated earlier, Teeter outlined the various

inquiries that we consider in determining whether enforcement of a

plea agreement would lead to a miscarriage of justice. Though some

of the Teeter factors weigh in Cardona’s favor, others suggest that

we should enforce the waiver and dismiss his appeal. First, that

Cardona “acquiesced in the result” suggests that we should enforce

the waiver. See Gil-Quezada, 445 F.3d at 37. Additionally, the

error may have influenced the high-end guidelines sentence Cardona

received, but we cannot be certain that the court would not have

imposed a similar sentence anyway. Although the district court

relied in part on its mistaken understanding that both sides agreed

to an 87-month sentence, it appears to have imposed the high

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sentence based on the drug quantities of both crack and cocaine to

which Cardona stipulated, and based on uncharged conduct including

possession of marijuana and possession of a large amount of

ammunition. Finally, although the district court would have been

free to reject the government’s recommendation (just as it was free

to reject an “agreed upon” sentence), 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. See United States

v. Velez Carrero, 77 F.3d 11, 11-12 (1st Cir. 1996). Thus, the

limited “character and gravity” of the alleged error, as well as

its questionable “impact on the defendant,” suggest that we should

enforce the waiver. See Gil-Quezada, 445 F.3d at 37. We therefore

conclude there is no miscarriage of justice; we enforce the appeal

waiver agreed to by the parties.

III.

Because Cardona agreed to a valid waiver of his right to

appeal his sentence, and because none of the errors he alleged

worked a miscarriage of justice, we will enforce the waiver and

dismiss his appeal.

DISMISSED.

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