United States Court of Appeals
For the First Circuit
Nos. 07-1238
07-1239
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR S. ACOSTA-ROMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and DiClerico,* Senior District Judge.
Vivianne M. Marrero, with whom Joseph C. Laws, Jr., Federal
Public Defender, and Victor J. Gonzalez-Bothwell, Assistant Federal
Public Defender, were on brief for appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson
Pérez Sosa, Assistant United States Attorney, were on brief for
appellee.
November 24, 2008
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. Victor Acosta-Roman pled
guilty, pursuant to a written plea agreement, to three money
laundering counts and received three concurrent fifty-seven month
sentences. On appeal, he contends that the district court erred
in adding a six-level enhancement under U.S.S.G. § 2S1.1(b)(1) and
that the waiver provision in his plea agreement does not bar his
appeal. The government contends that the appeal should be
dismissed because Acosta waived his right to appeal.
I. Background
In April of 2005, indictments were returned in two cases
charging Acosta, his wife, and others with conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h), substantive
money laundering in violation of 18 U.S.C. § 1956(a), and
conspiracy to import narcotics in violation of 21 U.S.C. § 952 and
§ 963. After the cases were consolidated, Acosta pled guilty to
two counts of conspiracy to commit money laundering and one count
of money laundering. In pleading guilty, Acosta admitted that from
August of 2002 through January of 2005, and from December of 2002
to October of 2004, he conspired with others to conduct financial
transactions involving the proceeds of illegal drug dealings, that
the transactions were designed to conceal the source of the
proceeds, and that he knew the proceeds were from unlawful activity
in violation of § 1956(h).1 He also admitted that on September 25,
1
Although Acosta pled guilty to laundering the proceeds of
illegal drug dealings and admitted that he knew the funds were the
proceeds of unlawful activity, he did not admit that he knew, at
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2003, he engaged in laundering $139,426.00 in violation of §
1956(a)(1)(B)(I) and § 1956(a)(2).
Acosta’s plea agreement recited the maximum penalties
applicable to those counts, warned that the court was not bound by
the plea agreement, and stated that the sentence would be left to
the court’s discretion. Acosta and the government agreed to
advisory guideline sentencing calculations that provided a base
offense level of eight, a twelve-level upward adjustment under
U.S.S.G. § 2B1.1(b)(1)(G), a two-level increase because of the
violation of § 1956, and a three-level downward adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1. They did not
agree on an adjusted offense level, and the agreement stated that
Acosta’s total offense level would be determined by the court at
sentencing based upon the court’s rulings on “certain sentencing
factors.”
The plea agreement further provided that at sentencing
the government would argue in favor of a six-level enhancement
under U.S.S.G. § 2S1.1(b), while Acosta would argue against the
enhancement. The agreement included a provision titled “WAIVER OF
APPEAL,” which provided that “[t]he defendant hereby agrees that if
this Honorable Court accepts this agreement and sentences hi[m]
according to its terms and conditions, defendant waives and
the time, that illegal drug dealings were the source of the money
involved in those transactions.
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surrenders [his] right to appeal the conviction and sentence in
this case.”
The sentencing hearing took place over a period of four
days. The court addressed the enhancement issue under U.S.S.G. §
2S1.1(b), which provides for an increase of six levels if the
defendant knew or believed that any of the laundered funds were the
proceeds of, among other things, an offense involving illegal
drugs. The government presented the testimony of two DEA
undercover agents, Diaz and Rivera, who participated in the
investigation that led to Acosta’s arrest. They testified about
the money laundering operations and the circumstances that
implicated Acosta. In particular, the agents testified about
Acosta’s involvement, with his wife, in delivering large amounts of
cash on three occasions.
Acosta also testified at the hearing. He admitted that
he knew the money was obtained unlawfully, but he denied any
knowledge of the source of the money. He also denied the
circumstances described by Agent Rivera, which suggested that he
would have knowledge that the money was drug proceeds.
Based on the evidence presented during the sentencing
hearing, the court concluded that Acosta’s testimony, denying
knowledge of the source of the money, was not credible. The court
credited Agent Rivera’s testimony and concluded, by a preponderance
of the evidence, that Acosta knew the money he delivered for
laundering was illegal drug proceeds. The court imposed a six-
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level enhancement under § 2S1.1(b). Acosta was sentenced to three
fifty-seven month terms to be served concurrently.
II. Discussion
On appeal, Acosta contends that the district court erred
in applying the six-level enhancement under U.S.S.G. § 2S1.1(b)
because the evidence did not support a finding that he knew the
money he delivered for laundering was illegal drug proceeds. He
argues that the waiver of appeal provision in his plea agreement
does not bar his appeal because the waiver applies only to the
terms and conditions of the agreement and not to the enhancement
imposed at sentencing. The government asserts that the waiver
applies and that the appeal must be dismissed.
Before considering the merits of Acosta’s claim, we must
determine whether the waiver of appeal provision is enforceable
under the circumstances of this case. United States v. Miliano,
480 F.3d 605, 607 (1st Cir. 2007). “‘[U]nder 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. Cardona-Diaz, 524 F.3d 20, 22 (1st
Cir. 2008) (quoting United States v. Teeter, 257 F.3d 14, 23 (1st
Cir. 2001)). When its validity is challenged, a waiver is tested
by considering whether the waiver statement and its scope are
sufficiently clear, whether the district court questioned the
defendant as to his understanding of the waiver and informed him of
its ramifications, and whether enforcing the waiver would cause a
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miscarriage of justice. United States v. Chandler, 534 F.3d 45, 49
(1st Cir. 2008).
In this case, however, Acosta does not challenge the
validity of his waiver or assert that its enforcement would work a
miscarriage of justice.2 Cf. United States v. Edelen, 539 F.3d 83,
85 (1st Cir. 2008) (defendant argued waiver was involuntary and
unknowing); Chandler, 534 F.3d at 49 (defendant argued district
court’s description of waiver inadequate); Cardona-Diaz, 524 F.3d
at 22-23 (defendant argued miscarriage of justice). Instead,
Acosta asserts that under its terms, the waiver does not apply to
his appeal of the U.S.S.G. § 2S1.1(b) enhancement issue.
“Even a knowing and voluntary appeal waiver only
precludes appeals that fall within its scope.” United States v.
McCoy, 508 F.3d 74, 77 (1st Cir. 2007). “[T]he scope of the waiver
is simply a matter of what the parties agreed to in the particular
case.” Id. Plea agreements are construed under basic contract
principles. United States v. Newbert, 504 F.3d 180, 185 (1st Cir.
2007).
The waiver provision in Acosta’s plea agreement states
that he waived his right to appeal his conviction and sentence “if
the Honorable Court accepts this agreement and sentences [Acosta]
2
At oral argument, counsel addressed the waiver under contract
principles and explicitly declined to pursue any issue that the
waiver was invalid or that enforcement would constitute a
miscarriage of justice.
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according to its terms and conditions.”3 Acosta contends that the
waiver does not apply to the U.S.S.G. § 2S1.1(b) enhancement
because the enhancement was not a term or a condition of the plea
agreement.
In Section 7, the agreement addresses “Sentencing
Guideline Calculations” and provides specific sentencing terms and
conditions. The government and Acosta agreed to a base offense
level, an upward adjustment based on the amount of the loss, an
increase in the base offense level due to a violation of § 1956,
and a downward adjustment for acceptance of responsibility. They
also agreed, at Subsection 7(d), that at the time of the
sentencing, they would each argue their differing positions on the
U.S.S.G. § 2S1.1(b) enhancement issue. In Subsection 7(f), the
parties agreed that Acosta’s total offense level would be
“determined at sentencing based on the Court’s ruling on certain
sentencing factors.”
At the sentencing hearing, the government and Acosta
presented evidence and argument concerning the enhancement issue,
as contemplated by the plea agreement. No issue has been raised
3
We have previously determined that the same waiver provision
is “simple and easily understood” and “clear and self-evident on
its face.” United States v. Borrero-Acevedo, 533 F.3d 11, 14 & 17
(1st Cir. 2008), cert. denied, --- S. Ct. ---, 2008 WL 4580034
(Nov. 10, 2008). Nevertheless, the frequency of appeals involving
waivers suggests that waiver provisions should make specific
reference to any terms and conditions of the plea agreement that
are not intended by the parties to be covered by the waiver.
Hopefully, such specificity would reduce the number of appeals in
which plea agreement waivers are at issue.
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here challenging the adequacy of Acosta’s opportunity to be heard
during the hearing. The court ruled, based on the evidence and
arguments presented during the sentencing hearing, that Acosta knew
the laundered funds were illegal drug proceeds. Based on its
ruling, the court imposed a six-level enhancement under U.S.S.G. §
2S1.1(b).
Taking the language of the plea agreement as a whole,
there is nothing to suggest that the parties’ agreement at
Subsection 7(d), to argue the enhancement issue at the sentencing
hearing, was not a term or condition of the plea agreement.
Further, the agreement did not guarantee a particular outcome on
the enhancement issue and instead provided that the total offense
level would be determined at sentencing, based on the court’s
ruling on certain sentencing factors, which were left to the
discretion of the court. In imposing sentence after the parties
had the opportunity to argue the enhancement issue, the court
complied with the condition agreed to in Subsection 7(d).
Therefore, the sentence, including the six-level enhancement under
U.S.S.G. § 2S1.1(b)(1), was imposed according to the terms and
conditions of the plea agreement.
III. Conclusion
For the foregoing reasons, Acosta’s waiver is both valid
and enforceable as to the enhancement issue, and therefore,
appellate consideration of that issue, on the merits, is barred.
The appeal is dismissed.
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