United States v. Rivera-Rivera ( 2015 )

Not for publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1883
UNITED STATES,
Appellee,
v.
ISRAEL RIVERA-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Stahl, and Barron,
Circuit Judges.
Anita Hill Adames, on brief for appellant.
Thomas F. Klumper, Assistant United States Attorney; Nelson
Pérez-Sosa, Assistant United States Attorney (Chief, Appellate
Division); and Rosa Emilia Rodriguez-Velez, United States Attorney,
on brief for appellee.
January 23, 2015
PER CURIAM. Defendant Israel Rivera-Rivera pled guilty
to conspiracy to possess with intent to distribute five or more
kilograms of cocaine, in violation of 21 U.S.C. § 846. In his plea
agreement, Defendant agreed to waive his right to appeal so long as
the district court sentenced him "in accordance with the terms and
conditions set forth in the Sentence Recommendation provisions" of
the agreement, wherein the parties agreed that Defendant would
request a sentence of not less than 96 months and the government
would request a sentence of 108 months. The government also agreed
that it would not oppose Defendant's request to credit time spent
incarcerated in the Dominican Republic against his federal
sentence. At his change of plea hearing, Defendant expressed
understanding that he had waived his appellate rights by entering
into the plea agreement, and stated that he entered into the
agreement voluntarily. The district court imposed a 108-month
sentence and agreed to the defendant's request for time credit.
A waiver of appellate rights is presumptively valid if
entered into knowingly and voluntarily, and if enforcement would
not result in a miscarriage of justice. United States v. Teeter,
257 F.3d 14, 25–26 (1st Cir. 2001). Defendant argues that the
district court's sentence is substantively unreasonable, without
addressing why his plea agreement should not be construed to bar
this appeal. Therefore, he has abandoned his right to argue that
his appeal waiver was either unknowing or involuntary. See United
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States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007) ("Where . . .
the defendant simply ignores the waiver and seeks to argue the
appeal as if no waiver ever had been executed, he forfeits any
right to contend either that the waiver should not be enforced or
that it does not apply."). The district court sentenced Defendant
in accordance with the terms of the plea agreement, and no clear
and gross injustice will result from enforcement of the waiver.
Cf. id. at 609. Thus, we DISMISS Defendant's appeal.
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