Filed: Jan. 25, 2013
Latest Update: Feb. 12, 2020
Summary: agreement.1, At one point prior to sentencing, the defendant moved pro se, for a downward departure, asserting that his role as a member in, the conspiracy was to act as a small-time middle-man.the plea agreement contained a waiver-of-appeal provision.United States v. Monzon, 359 F.3d 110 (2d Cir.
United States Court of Appeals
For the First Circuit
No. 11-1927
UNITED STATES OF AMERICA,
Appellee,
v.
GLEN RIVERA-ORTA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Selya and Howard,
Circuit Judges.
Michael J. Tuteur, Nicholas J. Ellis, and Foley & Lardner LLP
on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.
January 25, 2013
SELYA, Circuit Judge. Defendant-appellant Glen Rivera-
Orta pleaded guilty to a charge of conspiring to possess narcotics
with intent to distribute. In due course, the district court
imposed sentence. Although his plea agreement contained a waiver-
of-appeal provision, the defendant nevertheless attempts to appeal.
We enforce the waiver of appeal, reject a parallel ineffective
assistance of counsel claim as unripe, and dismiss the
improvidently filed appeal.
Inasmuch as this appeal trails in the wake of a guilty
plea, we draw the facts from the plea agreement, the change-of-plea
colloquy, the unchallenged portions of the presentence
investigation report (PSI Report), and the record of the
disposition hearing. See United States v. Calderón-Pacheco, 564
F.3d 55, 56 (1st Cir. 2009); United States v. Dietz,
950 F.2d 50,
51 (1st Cir. 1991).
In December of 2007, federal agents arrested and charged
upwards of 120 individuals (including the defendant) for their
alleged participation in a sprawling drug-trafficking conspiracy.
The government averred that, as part of the conspiracy, the
defendant owned and operated a drug point for which he purchased
drugs wholesale; that he thereafter was responsible for repackaging
the contraband; and that he served, from time to time, as an
enforcer for the drug ring.
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Immediately before his trial was to start, the defendant
agreed to plead guilty to the conspiracy charge, see 21 U.S.C.
§§ 841(a)(1), 846, 860, and the parties executed a nonbinding plea
agreement. The district court accepted the ensuing plea and
ordered the preparation of a PSI Report.
The guideline calculation, embodied in the plea agreement
and reiterated in the PSI Report, was straightforward. The
calculation started with a stipulated base offense level (30). It
then incorporated three upward adjustments, totaling six levels.
See USSG §2D1.1(b)(1) (possession of firearms); id. §2D1.2(a)(1)
(proximity to protected location); and
id. §3B1.1(c) (leadership
role). It then proceeded to apply a three-level downward
adjustment. See
id. §3E1.1 (acceptance of responsibility).
Pairing the adjusted offense level (33) with the applicable
criminal history category (I) produced a guideline sentencing range
(GSR) of 135-168 months.
At the disposition hearing, these calculations went
unchallenged. Defense counsel acknowledged the defendant's status
as a drug-point owner, but claimed mitigating circumstances and
sought a sentence at the nadir of the GSR.1 The district court
1
At one point prior to sentencing, the defendant moved pro se
for a downward departure, asserting that his role as a member in
the conspiracy was to act as "a small-time middle-man." This
motion was never ruled upon explicitly, and the position asserted
in it appears to have been abandoned by the time that the district
court convened the disposition hearing.
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obliged, sentencing the defendant to 135 months in prison. This
appeal followed.
The defendant's principal claim is one of sentencing
error: he contends that the district court erred in imposing a two-
level enhancement for his supposed leadership role. See USSG
§3B1.1(c). There is a threshold issue that must be resolved before
we can entertain this claim of sentencing error: the government
asseverates that the claim is foreclosed by the terms of the plea
agreement.
The government's asseveration is driven by the fact that
the plea agreement contained a waiver-of-appeal provision. That
provision memorialized the defendant's agreement that, as long as
the district court "accepts this Plea Agreement and sentences [him]
according to its terms, conditions and recommendations" — which it
did — the defendant "waives and surrenders his right to appeal the
judgment and sentence in this case."
A waiver of appellate rights in a criminal case, made
knowingly and voluntarily, is presumptively enforceable. See
United States v. Nguyen, 618 F.3d 72, 74 (1st Cir. 2010). We
employ a tripartite test in order to determine whether a waiver of
appeal should be enforced. See United States v. Teeter,
257 F.3d
14, 24-26 (1st Cir. 2001). To begin, we evaluate whether the
written plea agreement "contains a clear statement elucidating the
waiver and delineating its scope."
Id. at 24. Next, we examine
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whether the "district judge . . . question[ed] the defendant
specifically about [his] understanding of the waiver provision and
adequately inform[ed] [him] of its ramifications." Id.; see also
Fed. R. Crim. P. 11(b)(1)(N). If these criteria are not satisfied,
the waiver of appeal is rendered nugatory.
The third step in the progression is in the nature of a
safety valve. Even if the first two criteria are satisfied, we may
refuse to enforce the waiver of appeal if doing so would result in
a miscarriage of justice. See Teeter, 257 F.3d at 25.
In the case at hand, the defendant argues, albeit weakly,
that his waiver of appeal was neither knowing nor voluntary because
he was insufficiently informed about the rights that he was
surrendering. This argument is undercut both by the language of
the plea agreement and by the transcript of the change-of-plea
colloquy.
The plea agreement set forth the scope and terms of the
waiver of appeal with conspicuous clarity. And at the change-of-
plea hearing, the district court made a thorough inquiry into the
knowing and voluntary character of the plea agreement, including
the waiver-of-appeal provision. In explaining that provision to
the defendant, the court made pellucid that "the waiver of appeal
means that you will accept my sentence if it is within [the agreed
upon] range, as the final sentence and you will not go to a higher
Court asking those Judges . . . to basically review what
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transpired, you will just accept the sentence because that is the
sentence that you stipulated to." At the end of the hearing, the
court supportably found that the defendant was "competent to plead,
fully aware of his Constitutional rights and [the] consequences of
waiving the same," and had voluntarily entered into the plea
agreement (including the waiver-of-appeal provision) after
discussions with counsel.
No more is exigible to warrant a finding that the
defendant knowingly and voluntarily waived his appellate rights.
The waiver-of-appeal provision is, therefore, presumptively
enforceable.
The defendant's fallback position is that his waiver of
appeal should not be enforced because doing so would work a
miscarriage of justice. In this context, "the term 'miscarriage of
justice' is more a concept than a constant." Teeter, 257 F.3d at
26. An inquiry into a miscarriage of justice claim requires us to
consider factors such as the character, extent, and impact of the
alleged error. See
id. At a minimum, a miscarriage of justice
must "involve[] an increment of error more glaring than routine
reversible error." United States v. Miliano,
480 F.3d 605, 608
(1st Cir. 2007). The practical effect of this circumscription is
that the miscarriage exception is to be applied "sparingly and
without undue generosity."
Teeter, 257 F.3d at 26.
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The defendant asserts that the exception pertains here
because the role-in-the-offense enhancement was unfounded. As part
of his plea agreement, however, the defendant stipulated to the
application of the very enhancement about which he now complains.
During the change-of-plea colloquy, the district court confirmed
the defendant's agreement to this enhancement.2 A defendant cannot
agree to both an enhancement and its factual predicate, reiterate
that agreement in open court, and later repudiate it merely to suit
his later convenience. We hold, therefore, that the defendant
waived any challenge to the imposition of the enhancement. See
United States v. Serrano-Beauvaix, 400 F.3d 50, 54 (1st Cir. 2005).
This holding, in turn, defenestrates the argument that the
enhancement spawned a miscarriage of justice.
The defendant has one more shot in his sling. He argues
that he received ineffective assistance of counsel in the court
below. The crux of this argument is his assertion that his trial
counsel failed to advise him in a timely manner of a favorable plea
offer.
The facts are alleged in the defendant's brief to be as
follows. The defendant avers that on the morning that jury
selection was to begin, his attorney informed him that the
government had tendered a plea offer, which envisioned a 96-month
2
The court also confirmed the defendant's admission of his
status as a drug-point owner within the conspiracy (the central
fact upon which the role-in-the-offense enhancement was premised).
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sentence. The defendant indicated a willingness to accept this
offer, and his lawyer began to prepare the necessary paperwork.
Before any agreement could be firmed up, however, jury selection
began. At the conclusion of the empanelment, the defendant's
counsel advised him that the government would not agree to
recommend a sentence of less than 135 months.
The defendant's complaint about the quality of the
representation that he received is based on this sequence of
events. He asserts that his lawyer delayed for an unreasonable
period of time before conveying the putative 96-month plea offer to
him; and that, had the offer been conveyed earlier, he would have
accepted it and entered into a firm agreement well before jury
selection began.
"The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel." Scarpa v. Dubois, 38
F.3d 1, 8 (1st Cir. 1994). In determining whether an attorney's
performance falls below the constitutional norm, a defendant is
required to show "that counsel's performance was deficient" and
"that the deficient performance prejudiced the defense."
Strickland v. Washington,
466 U.S. 668, 687 (1984). "A defendant
who alleges ineffective assistance of counsel must carry the devoir
of persuasion on both tiers of the Strickland test."
Scarpa, 38
F.3d at 8-9.
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Notwithstanding the constitutional provenance of the
right to effective assistance of counsel in a criminal case, a
defendant does not have an absolute right to advance such a claim
for the first time on direct review of a conviction or sentence.
"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). Such a
claim will be entertained on direct review only in the rare
instance when "the critical facts are not in dispute and the record
is sufficiently developed to allow reasoned consideration of the
claim."
Id.
In this case — as in most cases in which the claim of
ineffective assistance has not been presented to the trial court —
the record is not adequately developed to allow for reasoned
consideration of the claim. Specifically, the district court
record lacks any evidence anent the details and timing of the
serial plea offers described by the defendant. Similarly, the
district court record is barren of any explanations by either the
defendant's trial counsel or the prosecutor about the sequence and
timing of plea negotiations.3
3
This paucity of evidence is made starkly apparent by the
defendant's acknowledgment that he has thus far been "unable to
confirm the timing" of the government's putative 96-month plea
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To say more on this point would be supererogatory.
Where, as here, the district court record is so sparse as to be
unhelpful, "we have routinely dismissed the relevant portion of the
appeal without prejudice to the defendant's right to litigate his
ineffective assistance claim through the medium of an application
for post-conviction relief." Mala, 7 F.3d at 1063. We follow that
praxis here and dismiss the defendant's ineffective assistance of
counsel claim without prejudice to his right to renew it, if he so
chooses, by means of a petition under 28 U.S.C. § 2255.4 See,
e.g., United States v. Walker,
665 F.3d 212, 234 (1st Cir. 2011).
There is one loose end. The defendant suggests that we
can still consider his ineffective assistance of counsel claim in
connection with his effort to vitiate the waiver-of-appeal
provision. This suggestion lacks force.
When, as in this instance, the merits of an ineffective
assistance of counsel claim cannot be adjudicated on the basis of
the district court record, the law requires us to honor an
otherwise enforceable waiver-of-appeal provision and dismiss the
defendant's appeal. "If the rule were otherwise, a defendant who
secured the benefits of a plea agreement by, inter alia, knowingly
and voluntarily waiving the right to appeal could escape the fairly
offer.
4
We take no view of the merits of this claim, nor do we
express an opinion as to whether a 96-month plea offer was ever
discussed.
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bargained-for appeal waiver by the simple expedient of asserting an
ineffective-assistance-of-counsel claim that had no merit." United
States v. Oladimeji, 463 F.3d 152, 155 (2d Cir. 2006) (quoting
United States v. Monzon,
359 F.3d 110 (2d Cir. 2004)).
We need go no further. For the reasons elucidated above,
we dismiss the defendant's appeal.
Dismissed.
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