United States v. Gomez-Avila ( 2016 )

Not for publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-2254
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS GOMEZ-AVILA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
Luis Rafael Rivera and Luis Rafael Rivera Law Offices on brief
for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.
August 10, 2016
PER CURIAM. Luis Gomez-Avila was indicted in connection
with a large-scale drug distribution ring operating in Carolina,
Puerto Rico. Ultimately, Gomez-Avila pled guilty to charges that
he conspired to possess and distribute large quantities of
narcotics (Count 1 of the indictment) and that he used a firearm
while doing so (Count 6 of the indictment).
The terms of Gomez-Avila's guilty plea were memorialized
in a plea agreement with the government which provided, in relevant
part, that Gomez-Avila could seek a sentence of between 121 and
151 months on Count 1, and that the parties would jointly recommend
a sentence of sixty months on Count 6 (to run consecutive to the
sentence imposed in Count 1). In the plea agreement, Gomez-Avila
waived the right to appeal his judgment and sentence, provided
that the district judge sentenced him in accordance with these
recommendations. And, the district judge did just that, sentencing
Gomez-Avila to 121 months on Count 1 and a consecutive sixty months
on Count 6.
As his brief candidly concedes, Gomez-Avila's appeal is
foreclosed by the appellate waiver provision contained in the plea
agreement. Gomez-Avila does not so much as suggest either that
the waiver does not apply, see United States v. Okoye, 731 F.3d
46, 49 (1st Cir. 2013) (describing the "threshold inquiry" of
whether the appeal "falls within the scope of the waiver-of-appeal
provision"), or that the waiver is somehow unenforceable, see
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United States v. Gil-Quezada, 445 F.3d 33, 36 (1st Cir. 2006)
(noting that appellate waivers must be entered into "knowingly and
voluntarily" and may not be enforced if doing so would "work a
miscarriage of justice"). Thus, any such argument is waived. See
United States v. Arroyo-Blas, 783 F.3d 361, 367 (1st Cir. 2015).
The appellate waiver must be enforced and the appeal dismissed.1
1 Gomez-Avila's claim would fare no better even were we to
consider its merits. For one, Gomez-Avila's argument that the
district court's hands were unconstitutionally "tied" by the
applicable mandatory minimum sentences is one that has been
consistently rejected. See United States v. Gonzalez-Ramirez, 561
F.3d 22, 30 (1st Cir. 2009) ("[I]t is beyond cavil that Congress
has the power to set statutory minimum and maximum sentences to
which courts must adhere." (citing Chapman v. United States, 500
U.S. 453, 467 (1991))). Nor is there merit to Gomez-Avila's claim
(raised for the first time on appeal) that the district court erred
in finding a sufficient factual basis to support his conviction
for use of a firearm in furtherance of the conspiracy. The record
soundly supported this conclusion. For example, at Gomez-Avila's
change of plea hearing, he affirmed on the record that the
government's allegation that he "use[d] and carr[ied] firearms
during and in relation to the drug trafficking activities" was
true and correct.
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