Filed: Aug. 09, 2005
Latest Update: Feb. 21, 2020
Summary: Circuit Judges.F.3d 68 (1st Cir.advisory guidelines, id., 3, The fact that defendant agreed to seek a sentence at the, bottom of the applicable guidelines range and did so at sentencing, does not bar his present request for resentencing under Booker, as, the government contends.
United States Court of Appeals
For the First Circuit
No. 04-1508
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO AQUINO-DE LA ROSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Randy Olen on brief for appellant.
Paula D. Silsby, United States Attorney, and James L.
Burke, Assistant U.S. Attorney, on Memorandum in Support of
Summary Affirmance.
August 9, 2005
Per Curiam. In this sentencing appeal, defendant
Francisco Aquino–De La Rosa challenges his sentence on the sole
ground that resentencing is required by United States v. Booker,
125 S. Ct. 738 (2005). The government has moved for summary
affirmance on the grounds that defendant waived his right to appeal
in his plea agreement and that, in any event, the district court
did not commit plain error under Booker in sentencing defendant to
the bottom of the applicable guidelines range. We deny the motion
for summary affirmance, vacate the sentence, and remand for
resentencing because, as discussed more fully below, we find the
appeal waiver to be unenforceable and conclude that defendant has
satisfied his burden, under United States v. Antonakopoulos,
399
F.3d 68 (1st Cir. 2005), of demonstrating a reasonable probability
that the district court would have imposed a lower sentence under
advisory guidelines,
id. at 75.
Defendant pleaded guilty to reentry after deportation
subsequent to a conviction for an aggravated felony, in violation
of 8 U.S.C. § 1326(a). His plea agreement contained the following
waiver of appeal:
Defendant is aware that Title 18, United
States Code, Section 3742 affords a defendant
the right to appeal the sentence imposed.
Defendant is also aware that he may, in some
circumstances, argue that his plea should be
set aside, or his sentence be set aside or
reduced, in a collateral challenge (such as,
but not limited to a motion under 28 U.S.C. §
2255). Knowing that, Defendant waives the
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right to appeal or to collaterally challenge
the following:
A. Defendant's guilty plea and any
other aspect of Defendant's
conviction in the above-captioned
case;
B. The adoption by the District
Court at sentencing of the positions
found in paragraph 3 above.1
That waiver was subject to the following exception:
Defendant's waiver of rights to appeal and to
bring collateral challenges shall not apply to
appeals or challenges based on a right that
has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review.
Relying on this waiver, the government argues that
defendant waived his right to appeal his sentence on Booker
grounds. Without reaching the question of whether defendant's
Booker appeal falls within the scope of the waiver or, instead,
within its exception, we decline to enforce the waiver because its
terms were not clearly explained during the plea colloquy. United
States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001).
Here, as in Teeter, the district court failed to call
defendant's attention to the appeal waiver and, instead,
affirmatively sought and obtained confirmation of defendant's
understanding that he had an unqualified right to appeal his
1
The "positions found in paragraph 3" of the plea agreement
included the government's "agree[ment] not to oppose the
defendant's request to be sentenced at the bottom of the applicable
guidelines range."
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sentence. Under those circumstances, enforcing the plea waiver
would work a "miscarriage of justice," id. at 26, especially since,
as discussed below, defendant's Booker appeal may well result in a
reduced sentence.
Defendant concedes that his claim of Booker error was not
preserved and that, therefore, he is entitled only to plain error
review. Because defendant was sentenced under a mandatory
guidelines system, the first two prongs of the plain error standard
have been met. Antonakopoulos, 399 F.3d at 75. In determining
whether the third and fourth prongs of that test have been met, the
court's "principal concern in these Booker 'pipeline' cases is with
the likelihood that the defendant would have received a lesser
sentence in a post-Booker regime of advisory guidelines." United
States v. Heldeman,
402 F.3d 220, 223-24 (1st Cir. 2005) (citing
Antonakopoulos, 399 F.3d at 81). Where the sentencing judge
expressly indicates that the sentence mandated by the guidelines is
unduly harsh, the third and fourth prongs are satisfied as well.
Antonakopoulos, 399 F.3d at 81; see also United States v.
Wilkerson,
411 F.3d 1, 10 (1st Cir. 2005); United States v. Lewis,
406 F.3d 11, 21-22 (1st Cir. 2005); United States v. Morin,
403
F.3d 41, 42 (1st Cir. 2005) (per curiam); United States v.
MacKinnon,
401 F.3d 8, 11 (1st Cir. 2005).
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The judge's comments here2 indicate a reasonable
probability that he would have imposed a more favorable sentence
under advisory guidelines.3 Accordingly, we remand for
resentencing. In so doing, we intimate no view on whether
defendant should receive a lower sentence on remand or on the
reasonableness of his previous sentence or any revised sentence.
See Heldeman, 402 F.3d at 224.
The motion for summary affirmance is denied, but the
government's alternative request that its motion and supporting
memorandum be treated as the brief for the appellee is allowed.
The sentence is vacated, and the case is remanded to the district
court. See Local R. 27(c).
2
Before imposing a sentence at the bottom of the applicable
guidelines range, the judge said to the defendant,
You seem to me to be a very nice man, and I am
sorry that I have to put you in prison for so
long. . . . You don't belong here in prison.
You belong with your friends; and you belong
in your country.
I know that you come here for economic
opportunity, but you have a prior drug
conviction, and people with prior drug
convictions who aren't authorized to enter the
country have to spend a lot of time in jail
when they get caught, and you've been caught.
3
The fact that defendant agreed to seek a sentence at the
bottom of the applicable guidelines range and did so at sentencing
does not bar his present request for resentencing under Booker, as
the government contends. Rather, like the district court,
defendant understandably believed that that was the lowest sentence
the court could legally impose.
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