BOUDIN, Circuit Judge.
In October 2016, Franklyn Morillo pled guilty in New Hampshire district court to conspiracy to distribute and possess with intent to distribute oxycodone and cocaine. In May 2017, the district judge sentenced Morillo to 168 months in prison. Morillo now appeals to contest his sentence. Morillo challenges the application of particular sentencing enhancements and the imposition
At the threshold, the government says that Morillo has no right to contest his sentence because his guilty plea, the result of a plea bargain with the government, includes an express waiver of his right to appeal his conviction or sentence if his sentence rests on a base offense level no lower than twenty six and no higher than thirty.
In 1999, a new rule of criminal procedure became effective, now re-codified and designated Federal Rule of Criminal Procedure 11(b)(1)(N). Rule 11(b)(1)(N) requires that when a defendant seeks to waive his or her right to appeal a sentence when pleading guilty — today a common provision sought by the government in plea bargains — the judge "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. P. 11(b)(1)(N).
A year and a half later, this court, in an opinion by Judge Selya, addressed several legal questions relating to the new rule.
— First, the written waiver must comprise "a clear statement" describing the waiver and specifying its scope.
— Second, "[m]indful" of Rule 11(b)(1)(N), the record must show that the judge's interrogation "suffice[d] to ensure that the defendant freely and intelligently agreed to waive [his or] her right to appeal [his or] her forthcoming sentence."
— Third, even if the plea agreement and the change of plea colloquy are satisfactory, the reviewing court retains discretion to refuse to honor a waiver if denying a right to appeal would "work a miscarriage of justice."
Next, in
Applying Supreme Court plain-error decisions, Judge Lynch ruled that when a defendant fails to preserve an alleged error regarding his appeal-waiver colloquy, the defendant must show "a reasonable probability that he would not have entered the plea had the error not been made."
Here, Morillo's appeal waiver bars his challenges to his sentence, including both the sentencing enhancements and the supervised-release conditions.
The court explained to Morillo: "[U]nder the terms of your agreement with the government you've waived or given up your right to file ... a direct appeal of your conviction or sentence ... but with four notable exceptions." The court identified for Morillo the circumstances in which he could appeal despite the waiver, none of which applies here. The court then asked whether Morillo had "discussed each term of the written plea agreement" with his attorney, and Morillo said that he had. The plea agreement included a clear statement explaining the appeal waiver and its scope.
Morillo's brief poses lines of questioning employed in other cases assessing the adequacy of appeal-waiver colloquies but not used in this one, arguing that these alternatives show the colloquy in his case to be faulty; but the number of possible questions is infinite, and this mustering of questions asked by other judges does not itself show any inadequacy in the judge's colloquy in this case. It is the defendant's task to identify a substantive flaw — not merely to compare this colloquy with others.
Nothing suggested the waiver deserved enhanced scrutiny. Morillo was not an inexperienced youth on the fringes of a conspiracy but the leader of a major drug operation who has some college education. Morillo graduated from a Massachusetts high school and apparently studied for one year at a community college to pursue a career in education. Further, the plea bargain offered sufficient advantages in limiting his exposure in the face of strong evidence of guilt.
Even had the colloquy been plain error, Morillo fails to meet the prejudice standard
Morillo's last resort is