United States Court of Appeals
For the First Circuit
No. 07-2720
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN TORRES-OLIVERAS,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.
Lisa Aidlin for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Perez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.
October 1, 2009
STAHL, Circuit Judge. Defendant-appellant Edwin Torres-
Oliveras was convicted and sentenced pursuant to a plea agreement
in which he admitted that he conspired to possess with intent to
distribute "cocaine base, 'crack,' detectable amounts of cocaine,
. . . and detectable amounts of heroin." As part of his plea,
Torres-Oliveras stipulated to possession with intent to distribute
"at least two (2) but less than three and one half (3.5) kilograms
of cocaine." In the agreement, Torres-Oliveras also waived his
statutory right to appeal his guilty plea or "any other respect of
defendant's conviction in the above captioned case." The
sentencing court adopted the government's recommended sentence of
108 months in prison followed by 8 years supervised release.
After sentencing, Torres-Oliveras filed a timely notice
of appeal. Five months later, while his appeal was pending before
this court, Torres-Oliveras submitted a pro se motion to the
district court under 18 U.S.C. § 3582(c)(2), seeking the
retroactive benefit of an amended sentencing guideline which
reduced by two levels the base offense level for crimes involving
crack cocaine. See U.S.S.G. App. C, Amend. 706 (2007). The
district court rejected the motion, finding that the revised
guideline did not apply to Torres-Oliveras' sentence because his
plea agreement stipulated to possession with intent to distribute
powder cocaine rather than crack cocaine. On appeal, Torres-
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Oliveras contests his conviction and sentence on several grounds,
none of which are availing.
1. Waiver of Appeal
Torres-Oliveras' direct appeal faces a formidable
preliminary hurdle in that he agreed, in the plea agreement, to
waive his right to appeal. He attempts to overcome this obstacle
by arguing that his waiver of appeal is unenforceable because (a)
the text of the waiver was confusing; (b) the district court failed
to fully explain the waiver to him and ensure that he understood
it; and (c) enforcement of the provision would work a miscarriage
of justice because the plea agreement process was tainted by
ineffective assistance of counsel.
The Federal Rules of Criminal Procedure require that
before accepting a guilty plea the sentencing court "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. Pro.
11(b)(1)(N). This court held in United States v. Teeter that a
waiver of statutory appellate rights is valid where a "defendant
enter[ed] into it knowingly and voluntarily." 257 F.3d 14, 24 (1st
Cir. 2001). We look to the text of the written plea agreement and
the change-of-plea colloquy to determine whether the defendant
"freely and intelligently" agreed to waive his right to appeal his
forthcoming sentence. Id.
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In addition, because Torres-Oliveras did not raise his
claim of Rule 11 error before the district court, we review only
for plain error. See United States v. Borrero-Acevedo, 533 F.3d
11, 15-16 (1st Cir. 2008) (citing United States v. Dominguez
Benitez, 542 U.S. 74, 76, 78, 83, 85 (2004); United States v. Vonn,
535 U.S. 55, 58-59, 73 (2002)). This requires that Torres-Oliveras
show "'(1) error, (2) that is plain, . . . (3) that affect[s]
substantial rights, . . . [and that] (4) the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.'" Id. at 15 (quoting Johnson v. United States, 520
U.S. 461, 467 (1997)). We consider only the first element because
we find that the district court made no error.
Torres-Oliveras first avers that the text of the plea
waiver was confusing. We disagree. The agreement stated quite
clearly that the defendant waived the right to appeal the
following:
A. Defendant's guilty plea and any other
respect of defendant's conviction in the
above captioned case;
B. A sentence of imprisonment that does
not exceed the number of months provided
for in Offense Level 30 of the United
States Sentencing Guidelines Manual
(2006), at the Criminal History Category
to be determined by the Court.
The Offense Level mentioned in this
paragraph does not necessarily constitute
a reasonable estimate of the sentence that
the parties expect will be imposed. The
defendant acknowledges that this waiver
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should result in the dismissal of any
appeal the defendant might file
challenging his conviction or sentence in
this case.
While Torres-Oliveras must concede that this language is clear as
to the scope of the waiver, he suggests that sub-part B introduced
an element of confusion. Indeed, at the change-of-plea hearing the
district court expressed some initial concern that sub-part B could
be read as converting the plea agreement from a recommendation to
the court as to sentencing (a "Type B" plea agreement under Fed. R.
Crim. Pro. 11(c)(1)(B)) into a binding plea agreement (a "Type C"
agreement under Fed. R. Crim. Pro. 11(c)(1)(C)), thus removing the
district court's sentencing discretion. But the district court was
ultimately satisfied, as are we, that the first sentence of the
paragraph immediately following sub-part B makes clear that the
agreement constituted merely a recommendation from the parties as
to sentencing and therefore preserved the court's discretion.
Furthermore, even if the text created confusion as to the non-
binding nature of the plea agreement, that would not impact our
analysis of the clarity of the scope of the appellate waiver
itself, which is a separate issue. Thus, we find no infirmity in
the text of the waiver.
Torres-Oliveras next challenges the validity of the
appellate waiver by arguing that the district court failed to
comply with Teeter and Rule 11(b)(1)(N) by not "call[ing] the
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waiver to the defendant's attention and question[ing] him closely
in order to ensure that he has a full understanding of the waiver
provisions and that he has knowingly and voluntarily elected to
waive his right of appeal." United States v. Gil-Quezada, 445 F.3d
33, 36 (1st Cir. 2006). We disagree. At the change-of-plea
hearing, the district court questioned the defendant in great
detail about his understanding of many aspects of the agreement,
including this exchange:
THE COURT: Do you understand that by
entering into this Plea Agreement you
will have waived or given up your right
to appeal all or part of the sentence?
THE DEFENDANT: Yes.
Torres-Oliveras argues that his case is analogous to United States
v. Quirindongo-Collazo, in which we voided a plea agreement where
"the magistrate judge asked just one question about the appeal
waiver." 213 Fed. Appx. 10, 2007 WL 152626, at *2 (1st Cir. Jan.
23, 2007).1 However, in Quirindongo-Collazo there was additional
evidence that at the sentencing hearing the "judge, defense
counsel, the government, and the probation officer had an extensive
discussion premised on the assumption that appellant could and
would appeal" and during that discussion "there was no mention by
any party of the appeal waiver." Id. In contrast, at sentencing
1
We note that this case was not selected for publication in
the West Federal Reporter series. Therefore, in keeping with Local
Rule 32.1, we will consider this opinion "for [its] persuasive
value but not as binding precedent."
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in this case, the district court was careful to explain that the
defendant only possessed a limited right of appeal given the waiver
of appeal clause in his plea agreement:
Mr. Torres, you can appeal your
conviction if you feel that your guilty
plea was somehow unlawful or involuntary
or if there is some other fundamental
defect in the proceedings that was not
waived by your guilty plea.
(Emphasis added). By its careful statement, the court avoided
giving a "blanket assurance about the right of appeal," against
which we cautioned in Teeter. See 257 F.3d at 25 (noting that,
where the defendant has agreed to waive his appeal rights, the
court should avoid making broad assurances about the right of
appeal because doing so "mudd[ies] the waters and tend[s] to
instill false hope"); see also Gil-Quezada, 445 F.3d at 37 (finding
that the court, at the change-of-plea hearing, did not mislead when
it stated that the defendant could appeal "under some
circumstances"). We therefore find no error.
Torres-Oliveras' final attack on the validity of his
appeal waiver invokes Teeter's miscarriage of justice exception.
In Teeter, we confirmed that the appeals court retains "inherent
power to relieve the defendant of the waiver . . . where a
miscarriage of justice occurs." 257 F.3d at 25-26. Torres-
Oliveras argues that his trial counsel's alleged ineffective
assistance during the plea bargaining process means that enforcing
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the waiver would work an unfairness. Indeed, we noted in Teeter
that the waiver exception could apply in cases involving a claim
"that the plea proceedings were tainted by ineffective assistance
of counsel." Id. at 25, n.9.
The crux of Torres-Oliveras' ineffective assistance claim
is that his attorney grievously erred by permitting him to sign a
plea agreement stipulating to possession of an amount of powder
cocaine rather than crack cocaine even though the attorney was
allegedly aware that (1) Torres-Oliveras' role in the offense
allegedly involved crack not powder cocaine, and (2) a sentencing
guideline amendment was set to take effect within weeks after
Torres-Oliveras' sentencing which would have lowered the penalty
for crack cocaine offenses.
On appeal, the appellant vehemently insists that his
trial attorney's errors are "crystal clear." However, we cannot
agree because the record before us is ambiguous as to the drug (or
drugs) involved in the conspiracy and the rationale behind Torres-
Oliveras' stipulation to powder cocaine.2 Given this ambiguity, we
2
For example, the grand jury indictment indicates that the
object of the conspiracy was to distribute three types of drugs,
"cocaine base (crack), cocaine and heroin." In a slightly
different description of the crime, the plea agreement states that
Torres-Oliveras agreed to plead guilty to count one of the
indictment, summarized as "possess[ion] with intent to distribute
fifty (50) grams or more of cocaine base, 'crack,' detectable
amounts of cocaine . . . and detectable amounts of heroin." In yet
a third iteration of the crime, also in the plea agreement, Torres-
Oliveras accepted responsibility for "at least two (2) but less
than three and one half (3.5) kilograms of cocaine." In addition,
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cannot say whether his attorney's apparent decision that he should
stipulate to powder rather than crack was a strategic choice,3 an
error, or an accurate description of the crime. In addition, it is
not clear on the record before us how Torres-Oliveras' sentence
would have been different had the plea agreement stipulated to
crack rather than cocaine, given that we do not know what amount of
crack he would have been held responsible for under such a
hypothetical plea. (And because we do not know what such a plea
agreement might have looked like, we cannot predict what effect the
revised crack sentencing guideline would have had on Torres-
Oliveras' ultimate sentence.) As we have said, "The miscarriage of
justice exception requires a strong showing of innocence,
unfairness, or the like," and the exception "must be applied
sparingly and without undue generosity." Gil-Quezada, 445 F.3d at
37 (internal quotation omitted). No such strong showing is evident
on the record.4
the change-of-plea hearing included references by the court and the
parties to several different descriptions of the drug or drugs
involved in the crime.
3
In other words, in may be that Torres-Oliveras received a
lower sentence than he otherwise would have precisely because he
stipulated to powder rather than crack cocaine. The sentence
disparity extant at the time suggests this might well have been the
case.
4
Torres-Oliveras also devotes one sentence of his brief to an
additional miscarriage of justice argument -- that the district
court misled the defendant at sentencing by stating that he could
file a sentencing reduction motion based on the pending crack
sentencing guideline amendment after the amendment took effect.
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In addition, to the extent that Torres-Oliveras seeks
direct review of his ineffective assistance claim, we deny such a
review due to the factual ambiguities surrounding the defense
attorney's performance. "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). A collateral proceeding under 28
U.S.C. § 2255, "in which the parties and the district court can
address factual matters relevant to the issue," is the proper
mechanism for addressing Torres-Oliveras' ineffective assistance
claim.5 United States v. Genao, 281 F.3d 305, 313 (1st Cir. 2002).
Having determined that Torres-Oliveras' waiver of appeal
rights was knowing and voluntary and that enforcement of the waiver
will not work a miscarriage of justice, we conclude that Torres-
Oliveras' direct appeal of his conviction and sentence is not
permitted under the terms of the waiver to which he assented. We
discern no error, plain or otherwise.
Due to a failure to explain in any detail how this alleged error
would work a miscarriage of justice, we deem this argument waived.
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
5
In his brief, Torres-Oliveras also suggests that his trial
counsel was deficient in that he failed to preserve a challenge to
the sentencing disparities between crack and powder cocaine. This,
too, is a claim properly raised in a collateral challenge.
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2. Motion for Reduction of Sentence
We turn briefly to Torres-Oliveras' second claim. On
appeal, he seeks review of the district court's denial of his pro
se motion for modification of his term of imprisonment under 18
U.S.C. § 3582(c)(2).6 As a preliminary matter, the government
argues that the district court lacked jurisdiction to entertain
this motion because Torres-Oliveras filed it in the district court
five months after he filed his notice of appeal. In other words,
the initial conviction and sentencing were already pending on
appeal before this court when Torres-Oliveras filed his motion for
sentence modification in the district court.
The government's argument is consistent with the general
rule that "[t]he filing of a notice of appeal is an event of
jurisdictional significance--it confers jurisdiction on the court
of appeals and divests the district court of its control over those
aspects of the case involved in the appeal." Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982).7 However, this
6
Section 3582(c)(2) permits a court to reduce the term of
imprisonment for a defendant who was sentenced based on a
"sentencing range that has subsequently been lowered by the
Sentencing Commission."
7
Indeed, this court previously determined that "a docketed
notice of appeal suspends the sentencing court's power to modify a
defendant's sentence." United States v. Distasio, 820 F.2d 20, 23
(1st Cir. 1987). We note, however, that Distasio involved a
defendant who sought a sentence reduction under Rule 35(b) of the
Federal Rules of Criminal Procedure, which provides that a court
may reduce a defendant's sentence within one year of sentencing if,
after sentencing, the defendant "provided substantial assistance in
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circuit and others have recognized limited exceptions to this
judge-made rule. See, e.g., 16A Charles Alan Wright et al.,
Federal Practice and Procedure § 3949.1 (4th ed. 2009); United
States v. Ortega, 859 F.2d 327, 334-35 (5th Cir. 1988). Arguably,
this case falls within one of the recognized exception. In any
event, even if Torres-Oliveras were to correct any potential defect
by refiling his motion with the district court after this appeal
were resolved, the results on the merits would be the same.
We therefore review the district court's denial of a
motion for relief under § 3582(c) for abuse of discretion, United
States v. Rodriguez-Pena, 470 F.3d 431, 432 (1st Cir. 2006) (per
curiam), and find no such error. We agree with the district court
that because Torres-Oliveras stipulated to possession with intent
to distribute powder cocaine, the revised guideline regarding crack
cocaine possession was simply not applicable to his case.
3. Kimbrough Claim
Finally, we briefly address Torres-Oliveras' claim that
the district court committed plain error by failing to consider the
sentencing guideline disparity between crack and powder cocaine.
Because Torres-Oliveras failed to raise below the reasonableness of
investigating or prosecuting another person." See Fed. R. Crim.
Pro. 35(b). Torres-Oliveras sought a sentencing reduction under a
separate provision, 18 U.S.C. § 3582(c)(2).
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the crack to powder cocaine ratio, we review this Kimbrough claim8
for plain error. United States v. Matos, 531 F.3d 121, 122 (1st
Cir. 2008). We find no error, plain or otherwise. Torres-Oliveras
stipulated to and was sentenced for possession with intent to
distribute powder cocaine, not crack cocaine. Therefore, because
Torres-Oliveras' sentence was not based on a crime involving crack
cocaine, there is simply no Kimbrough issue here. It may be that
Torres-Oliveras' Kimbrough argument would have some relevance in a
collateral claim for ineffective assistance of counsel, but given
the plain language of his plea agreement there is no such relevance
on direct review.
For the foregoing reasons we dismiss Torres-Oliveras'
appeal.
8
A "Kimbrough claim" arises from the Supreme Court's 2007
holding that because the sentencing guidelines are "effectively
advisory" a sentencing court "may consider the disparity between
the Guidelines' treatment of crack and powder cocaine offenses."
Kimbrough v. United States, 128 S. Ct. 558, 564 (2007).
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