United States v. Miliano

United States Court of Appeals
For the First Circuit

No. 05-2746

UNITED STATES OF AMERICA,

Appellee,

v.

VICTOR MILIANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, Senior U.S. District Judge]

Before

Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.

Jorge E. Rivera-Ortíz, by appointment of the court, for
appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney (Chief,
Appellate Division), were on brief, for appellee.
March 28, 2007
 SELYA, Senior Circuit Judge. A criminal defendant,

disappointed by his sentence, seeks appellate review despite his

earlier waiver of any right to appeal. Concluding, as we do, that

the defendant has forfeited any right to contest the waiver and

that, in all events, no miscarriage of justice will result from its

enforcement, we dismiss the appeal.

The underlying case had its genesis in a four-count

indictment handed up by a federal grand jury sitting in the

District of Puerto Rico. That indictment charged twenty-four

individuals with conspiring to distribute narcotics and/or to

launder the resultant proceeds. Among those charged with

conspiring to commit money laundering was defendant-appellant

Victor Miliano. The indictment noted, inter alia, that the

authorities had discovered an illegal firearm attributable to

Miliano at a stash house.

After some procedural wrangling, not relevant here,

Miliano pleaded guilty to both the conspiracy count and to a

related forfeiture count. See 18 U.S.C. §§ 1956(h), 982. In a

negotiated plea agreement (the Agreement), Miliano acknowledged

that, on two occasions (July 9 and 12, 2004), he had chauffeured a

car carrying drug proceeds totaling nearly one-half million dollars

for the purpose of concealing the ownership of the funds. Miliano

received a stipend of $300 for the first delivery and $1,000 for

the second. While he admitted that he knew that the funds were the

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avails of illegal activity, he denied knowing that they were

derived from narcotics trafficking. This denial, which the

government reserved the right to contest, is of some moment; the

federal sentencing guidelines demand a six-level enhancement of a

defendant's offense level in cases in which the defendant knows or

believes that laundered funds are the proceeds of a controlled

substance offense. See USSG §2S1.1(b)(1).

In addition to leaving for argument before the sentencing

court the question of whether the disputed six-level enhancement

should attach, the Agreement recounted a number of agreed

adjustments (some upward, some downward). It also contained

clauses memorializing the government's agreement (i) not to oppose

a sentence at the bottom of whichever guideline range proved to be

applicable and (ii) to forgo any monetary recovery on the

forfeiture count (except for the mandatory $100 special assessment

required by 18 U.S.C. § 3013(a)). And, finally, the Agreement

contained a clause waiving Miliano's right to appeal his sentence

as long as the court sentenced him according to its terms.

At the change-of-plea hearing, Miliano had the assistance

of a court-appointed interpreter. The district judge explored the

voluntariness of Miliano's plea and conducted a thorough inquiry

into whether Miliano understood the rights he was surrendering.

This inquiry included specific reference to the waiver of appeal.

The court then confirmed that Miliano's attorney had reviewed the

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Agreement with him in Miliano's native tongue (Spanish). In the

end, the court found Miliano's plea to be knowing and voluntary,

accepted the Agreement, and informed Miliano, in a literally

correct comment, that "under some circumstances you or the

government may have the right to appeal any sentence that this

court imposes."

The district court convened the disposition hearing on

October 18, 2005. The sole disputed factual issue was whether

Miliano had known that the transported funds were drug proceeds.

The presentence investigation report (PSI Report) recommended an

affirmative answer to this question (and, accordingly, recommended

inclusion of the six-level enhancement).

At the disposition hearing itself, the government called

as a witness a federal agent, Luis Ortiz, who had overseen the

investigation that resulted in Miliano's arrest. To supplement

this testimony, the government introduced videotapes of both the

July 9 and July 12 incidents. Ortiz narrated the videotapes, which

depicted Miliano and an associate, Angel Moreno-Núñez (Moreno),

meeting undercover agents in a public parking lot. On both

occasions, Miliano functioned as the driver (using a different car

each time) while Moreno conducted the discussions with the

undercover agents and delivered shopping bags full of currency to

them. Ortiz added that code-laden telephone conversations between

Moreno and undercover agents prior to the first meeting were

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conducted in a manner characteristic of drug-trafficking

transactions.

Ortiz also testified about a meeting between the

undercover agents and the money launderers inside a store

immediately prior to the beginning of the July 9 videotape. He

noted that Miliano was present at that meeting.

At the conclusion of his testimony, Ortiz stated that in

eight years of investigative work he had neither encountered nor

heard about "any other kind of business [besides trafficking in

narcotics proceeds that] delivers large amounts of quantities of

cash using codes, delivering currency on the street, [in the]

denominations" transported by Miliano. Drawing on this testimony,

the overall factual scenario, and Miliano's possession of a gun,1

the government argued that Miliano must have known that he was

engaged in the laundering of drug money.

Miliano's lawyer attempted to blunt the force of Ortiz's

testimony by establishing that the agent's experience was

exclusively in narcotics and the laundering of drug proceeds.

Thus, the lawyer argued, Ortiz would not be aware whether or not

other criminal enterprises laundered funds using similar

1
Miliano was not charged with possession of the gun, received
no sentence enhancement for the gun, and never explicitly
acknowledged possessing it. However, the gun was mentioned in the
PSI Report as well as the indictment, and Ortiz alluded to it in
his testimony. In all events, during the disposition hearing,
defense counsel stated that he was not challenging the information
related to the gun.

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techniques. The lawyer added that Miliano himself had not used any

codes, nor had he personally carried the funds. Finally, the

lawyer asserted that the gun was not probative of whether Miliano

believed he was engaged in laundering drug proceeds.

The sentencing court found by a preponderance of the

evidence that Miliano had knowledge that the funds were drug

proceeds and, accordingly, applied the six-level enhancement. The

court rested this finding primarily on "the amounts [Miliano] was

paid for the pick ups, the bag that was used in the pick ups, the

place where the pick ups took place, [and] the modus operandi of

drug payments in Puerto Rico." This finding, when combined with

the other (agreed) sentencing adjustments, yielded a guideline

sentencing range of 57-71 months. The court sentenced Miliano to

the bottom of the range and then informed him that he had a right

to appeal if the sentence imposed was "contrary to law."

This timely appeal ensued. In it, Miliano attempts to

attack both the six-level enhancement and the reasonableness of his

sentence. See United States v. Booker, 543 U.S. 220, 261 (2005);

United States v. Jiménez-Beltre, 440 F.3d 514, 517 (1st Cir. 2006)

(en banc), cert. denied, 127 S. Ct. 928 (2007).

The threshold question is whether we should enforce

Miliano's waiver of appellate rights. Here, that question is

answered by default: Miliano did not brief it, preferring instead

to ignore the waiver and its effect. Even after the government

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filed its brief, relying heavily on the waiver, Miliano eschewed

the filing of a reply brief. This struthious approach was a poor

strategic choice.

A defendant who waives his right to appeal and thereafter

attempts to avoid the effect of the waiver must confront the waiver

head-on. Where, as here, the defendant simply ignores the waiver

and seeks to argue the appeal as if no waiver ever had been

executed, he forfeits any right to contend either that the waiver

should not be enforced or that it does not apply. See Sandstrom v.

ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990) (explaining that

arguments not made in an appellant's opening brief are deemed

waived); see also United States v. Coplin, 463 F.3d 96, 102 n.6

(1st Cir. 2006) (applying Sandstrom principle in a criminal

appeal). Miliano's appeal is subject to dismissal for this reason

alone.

To be sure, we could, in the exercise of our discretion,

forgive a defendant's failure to brief the reasons why a waiver

should not be construed to bar an appeal — but that discretion

should be exercised only when doing so is necessary in order to

avoid a clear and gross injustice. Cf. United States v. Maldonado-

Garcia, 446 F.3d 227, 230 (1st Cir. 2006) (applying the "clear and

gross injustice" standard for appellate review when defendant

waived his motion for a judgment of acquittal in the district

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court). Such cases will be hen's-teeth rare and, as we explain

below, this case is not of that genre.

We set forth the appropriate test for evaluating the

enforceability of a waiver of appellate rights in United States v.

Teeter, 257 F.3d 14 (1st Cir. 2001). There, we held that a waiver

of the right to appeal is binding when (i) "the written plea

agreement signed by the defendant contains a clear statement

elucidating the waiver and delineating its scope"; (ii) the

district court "inquire[d] specifically at the change-of-plea

hearing into any waiver of appellate rights"; and (iii) denial of

the right to appeal does not work a miscarriage of justice. Id. at

24-25.

In this instance, the first two requirements are readily

satisfied. The Agreement, bearing Miliano's signature, contains a

specific provision that states with unmistakable clarity that

"[t]he defendant hereby agrees that if this Honorable Court accepts

this agreement and sentences him according to its terms and

conditions, [he] waives and surrenders his right to appeal the

judgment and sentence in this case." Moreover, at the change-of-

plea hearing, the district judge inquired pointedly into Miliano's

understanding of the waiver of appeal, confirmed that defense

counsel had explained the various provisions of the Agreement

(including the waiver of appeal provision) to Miliano in Spanish,

and verified Miliano's understanding of the Agreement and its

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ramifications. No more was exigible. See, e.g., United States v.

Gil-Quezada, 445 F.3d 33, 36-37 (1st Cir. 2006); United States v.

De-La-Cruz Castro, 299 F.3d 5, 12 (1st Cir. 2002).

This brings us to Teeter's third prong: the miscarriage

of justice exception. This exception is to "be applied sparingly

and without undue generosity." Teeter, 257 F.3d at 26. A

miscarriage of justice, at a minimum, involves an increment of

error more glaring than routine reversible error. See id. (noting

that the miscarriage of justice requirement is "demanding enough to

prevent defendants who have agreed to waive their right to appeal

from successfully pursuing garden-variety claims of error"). Given

Miliano's failure to brief the enforceability of the waiver, see

text supra, it suffices to say that his garden-variety claims of

error do not approach this order of magnitude.2

We need go no further. Miliano knowingly and voluntarily

entered into a plea agreement, through which he received

2
We see no need to enumerate these claims. We note, however,
Miliano's argument that there was insufficient evidence for the
court to conclude that he knew that he was involved in laundering
drug proceeds. In his view, the government's evidence was
probative only of his knowledge that he was illegally laundering
money, not that he knew the money's origins.
This argument overlooks that the district court had before it
the PSI Report, the videotapes, and Ortiz's testimony. With these
guideposts, the court drew its ultimate inference from the totality
of the circumstances. Even without a waiver of appeal, we review
a sentencing court's factual findings only for clear error, United
States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990), and a sentencing
court's choice between competing, but rational, inferences cannot
be clearly erroneous, see id. at 508.

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significant consideration (including a minor role adjustment and a

favorable sentencing recommendation) in exchange for, inter alia,

a waiver of his right to appeal. The waiver was explicit, and

Miliano understood its import. To cinch matters, he failed

appropriately to challenge it in his brief on appeal. Under the

circumstances, we are fully satisfied that no clear and gross

injustice will result from the enforcement of that waiver according

to its tenor. Consequently, we dismiss Miliano's appeal.

Appeal dismissed.

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