United States v. Villodas-Rosario , 901 F.3d 10 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 15-1981
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL L. VILLODAS-ROSARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios,
LLP, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, and Francisco
A. Besosa-Martínez, Assistant United States Attorney, on brief for
appellee.
August 20, 2018
LIPEZ, Circuit Judge. Appellant Angel L. Villodas-
Rosario appeals his sentence, claiming that it is both procedurally
and substantively unreasonable. He asserts that he may bring these
challenges because the waiver-of-appeal provision in his plea
agreement should not be enforced under the tripartite framework of
United States v. Teeter, 257 F.3d 14 (1st Cir. 2001). The
government urges us to dismiss the appeal based on the plain-error
analysis set forth in United States v. Borrero-Acevedo, 533 F.3d
11 (1st Cir. 2008).
These competing arguments mirror the confusion in our
precedent as to the proper standard for evaluating the
enforceability of an appellate waiver. Although we explain this
confusion below, we ultimately conclude that, even under the more
defendant-friendly Teeter approach, Villodas-Rosario's waiver of
appeal must be enforced. Accordingly, we dismiss his appeal.
I.
Villodas-Rosario pleaded guilty pursuant to a plea
agreement to one count of knowingly possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). The plea agreement contained several key
provisions. First, the government agreed to dismiss a related
charge for possession of a machine gun, which carried a mandatory
minimum of 30 years' imprisonment. Second, the parties agreed
that the guideline sentence recommendation on the remaining charge
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was 60 months, which was the statutory mandatory minimum. Third,
the agreement permitted the government to recommend a sentence not
to exceed 17 years of imprisonment and Villodas-Rosario to advocate
for a sentence as low as 8 years of imprisonment. Finally,
Villodas-Rosario agreed "to waive and surrender his right to appeal
the judgment and sentence in this case if the Court accept[ed]
[the agreement] and sentence[d] him according to its terms,
conditions, and recommendations."
At the change-of-plea hearing, the district court
explained to Villodas-Rosario the rights that defendants waive by
pleading guilty. In the context of describing the rights of
defendants who are generally in Villodas-Rosario's position, the
court stated:
You should know that sentences imposed in this court for
this kind of case can be appealed by both sides. You
can appeal. The government can appeal. Both sides can
exercise the right to appeal. Sometimes Plea Agreements
require that a defendant waive the right to appeal under
some circumstances. Do you understand that?
The court did not go beyond this general explanation to describe
Villodas-Rosario's specific appellate waiver provision or to
inquire into his understanding of the appellate rights he was
giving up by accepting the plea agreement. After delivering the
explanation, the court accepted Villodas-Rosario's guilty plea.
Subsequent to the plea hearing but prior to sentencing,
Villodas-Rosario became concerned about the affidavit of the sole
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police officer who conducted surveillance in this case. For
example, the officer signed into the precinct to work on only one
of the three days on which she supposedly conducted surveillance,
and appellant claims that the log book records for the vehicles
allegedly used by the officer were unavailable. Nevertheless, the
officer's affidavit was used to establish probable cause for the
search warrant that led to the discovery of weapons and drugs in
Villodas-Rosario's possession. Despite these concerns, Villodas-
Rosario never filed a motion challenging the validity of the
affidavit. Instead, defense counsel discussed these concerns with
the prosecutor out of "courtesy." The prosecutor, in turn, agreed
to lower the government's sentencing recommendation to "at least
ten (10) years."
At sentencing, the government recommended a sentence of
"at least 120 months," well below the maximum term set forth in
the plea agreement and consistent with the informally promised
recommendation. In fact, both the government and defense counsel
confirmed during the sentencing hearing that the 120-month
recommendation was "with the understanding that if Your Honor
sentences within the range of eight to 17 [years], then the
defendant waives his right to appeal" under the plea agreement.
During sentencing, the district court expressly
considered relevant factors specified by 18 U.S.C. § 3553(a),
including: 1) the drugs, paraphernalia, cash, and multiple
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firearms discovered during Villodas-Rosario's arrest; 2) the
presence of an automatic firearm; 3) Villodas-Rosario's criminal
history; and 4) Villodas-Rosario's history of substance abuse.
The district court also noted that the defense essentially
"stipulated on [its] own some sort of voluntary variance, if you
will, by way of recommendation," since Villodas-Rosario agreed to
advocate for at least 96 months' imprisonment despite the minimum
guidelines sentence of 60 months. After the allocution, the
district court sentenced Villodas-Rosario to 144 months'
imprisonment -- a sentence within the plea agreement's appellate
waiver range.
On appeal, Villodas-Rosario asks that his sentence be
vacated and the case remanded for resentencing. First, Villodas-
Rosario contends that his plea agreement's appellate waiver is
unenforceable because "the trial court did nothing to ensure that
Villodas-Rosario was freely and intelligently waiving his right to
appeal his sentence; on the contrary, it assured him that he did
have the right to appeal his sentence." Second, if this court
finds that the waiver is unenforceable, Villodas-Rosario contends
that his sentence was both procedurally unreasonable -- due to the
district court's supposed failure to explain the reasons for the
variance -- and substantively unreasonable. The government argues
that we should enforce the appellate waiver set forth in the plea
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agreement and not address the sentencing arguments that Villodas-
Rosario raises.
II.
Villodas-Rosario and the government, relying on
different strands of our court's precedent, disagree about the
appropriate standard for determining whether to enforce an
appellate waiver. As we explain in Section II.B, we should enforce
Villodas-Rosario's waiver regardless of which of the two standards
we apply. Nonetheless, the parties' competing arguments highlight
a tension in our cases that warrants careful examination. We thus
begin our discussion by reviewing the development of our case law
on appellate waiver enforcement.
A. Waiving the Right to Appeal
In 1999, Rule 11(c)(6) of the Federal Rules of Criminal
Procedure was amended to require that, "during a change-of-plea
hearing, the presiding judge 'must address the defendant
personally in open court and inform the defendant of, and determine
that the defendant understands . . . the terms of any provision in
a plea agreement waiving the right to appeal.'" Teeter, 257 F.3d
at 22 (quoting Fed. R. Crim. P. 11(c)(6) (1999)).1 In the
1
In a 2002 amendment, Rule 11 was reorganized and this
requirement became what is known today as Rule 11(b)(1)(N), but
the substance of the rule remained largely the same. The current
text of Rule 11(b)(1)(N) reads, in relevant part: "Before the court
accepts a plea of guilty or nolo contendere, the defendant may be
placed under oath, and the court must address the defendant
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explanatory notes for the 1999 amendments, the advisory committee
clarified that it was adding the requirement to inquire into
waivers of appellate rights only to "reflect the increasing
practice of including [appellate waiver] provisions in plea
agreements[.]" Fed. R. Crim. P. 11(c)(6), advisory committee's
note to 1999 amendments. The committee explicitly disavowed any
inference that it thought such appellate waivers were, in fact,
enforceable, stating that it "t[ook] no position on the underlying
validity of such waivers." Id.Indeed, at the time Rule 11 was amended to address plea
agreement appellate waivers, our court had not yet spoken on their
validity. In 2001, Teeter presented us with the opportunity to do
so. At the time Teeter was decided, nine other circuits had
already addressed the issue, and all nine had upheld the use of
such waivers. See 257 F.3d at 23 (compiling cases). In light of
this consensus, and "reluctant to brush aside this collective
wisdom[,]" we followed our sister circuits in holding that, "under
ordinary circumstances," such waivers "are valid in theory." Id.We were concerned, however, about the risks presented by defendants
giving up their appellate rights before sentencing. "To ameliorate
personally in open court. During this address, the court 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).
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these risks, we deem[ed] it appropriate that such waivers meet
stringent criteria." Id. Hence, we held that appellate waivers
are binding so long as: (1) "the written plea agreement signed by
the defendant contains a clear statement elucidating the waiver
and delineating its scope"; (2) the district court ensures that
"the defendant freely and intelligently agreed to waive her right
to appeal her forthcoming sentence" by inquiring "specifically at
the change-of-the-plea hearing into any waiver of appellate
rights"; and (3) the denial of the right to appeal would not "work
a miscarriage of justice." Id. at 24-25; see also United States
v. Edelen, 539 F.3d 83, 85 (1st Cir. 2008).
As to the second prong, Teeter explained that, while an
inquiry at the change-of-plea hearing would ensure an intelligent
waiver, such an inquiry was not a necessary condition. If the
record as a whole revealed that the defendant understood the waiver
at the time he entered the plea, an inadequate inquiry would not
invalidate the waiver. Teeter, 257 F.3d at 24 (explaining that
failure to inquire "may serve to invalidate the waiver, depending
upon what the record shows as to the defendant's knowledge (that
is, whether the defendant, notwithstanding the absence of a
particularized inquiry, understood the full significance of the
waiver)").
The Teeter inquiry requirement was explicitly inspired
by, but not dependent on, Rule 11. We were "[m]indful that Rule
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11[] . . . specifically recognize[d] the importance of the change-
of-plea hearing to any waiver of appellate rights," and we noted
that "the advisory committee made it pellucid that such an inquiry,
properly performed, offer[ed] considerable assurance of the
defendant's knowledge and volition." Id. While Teeter favorably
referenced the policy motivations of Rule 11(b)(1)(N), other
circuits had adopted tests similar to the one in Teeter --
including the requirement that judges inquire into a defendant's
waiver of appellate rights at the change-of-plea hearing -- years
before the 1999 amendments added such a requirement to the Federal
Rules of Criminal Procedure. See, e.g., United States v. Bushert,
997 F.2d 1343, 1351 (11th Cir. 1993).
Importantly, the Teeter prong-two inquiry and the Rule
11(b)(1)(N) inquiry -- although accomplished by a single colloquy
between court and defendant -- serve two distinct purposes. A
defendant invoking Teeter seeks relief from an appellate waiver in
order to appeal his conviction, his sentence, or both. The
decision whether to enforce an appellate waiver is thus a threshold
question. We cannot consider the underlying merits of a
defendant's appeal until we decide whether a defendant has validly
waived his appellate rights. A defendant alleging Rule 11
violations seeks to vacate the entire plea. The decision whether
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to enforce an appellate waiver necessarily precedes the
consideration of such claims.2
This distinction between a Teeter inquiry and a Rule 11
inquiry is highlighted by the remedy prescribed by Teeter when an
appellate waiver is deemed unenforceable. In such cases, we "sever
the waiver of appellate rights from the remainder of the plea
agreement, allowing the other provisions to remain in force."
Teeter, 257 F.3d at 27. After severing, we go on to consider the
merits arguments the defendant raises relating to his conviction
or sentence. In other words, contravening the requirements of
Teeter does not render invalid a defendant's guilty plea. That
Teeter treats the enforcement of an appellate waiver as a separate
question from the validity of a plea demonstrates that the Rule 11
and Teeter requirements are distinct, each tailored to a different
request for relief.
In sum, after Teeter, a First Circuit district court's
plea colloquy about an appellate waiver fulfills two independent
purposes: it simultaneously satisfies Rule 11's requirement for
the valid acceptance of a plea and Teeter's second prong for the
enforcement of an appellate waiver. Accordingly, even if Rule
2
In some cases, a defendant may seek to invalidate his plea
after he is successfully released from an appellate waiver. A
defendant may even seek to invalidate his plea on the basis of a
Rule 11(b)(1)(N) error. The issues of appellate waiver enforcement
and whether a plea should be invalidated are not mutually
exclusive, but will arise sequentially.
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11(b)(1)(N) were repealed, Teeter's inquiry requirement would
remain unchanged.
That said, since our decision in Teeter, we have failed
to continuously stress that Rule 11(b)(1)(N) and the second prong
of Teeter, with their shared directive to inquire into the
defendant's understanding of an appellate waiver, created two
separate, albeit related, obligations.3 Indeed, we effectively
blended the two areas of law in Borrero-Acevedo, the case on which
the government relies to argue that Villodas-Rosario's appeal
should be dismissed.
In Borrero-Acevedo, we looked to the Supreme Court's
decisions in United States v. Dominguez Benitez, 542 U.S. 74(2004), and United States v. Vonn, 535 U.S. 55 (2002), which held
that a defendant seeking to vacate a conviction based on an
unpreserved Rule 11 error "must show a reasonable probability that,
but for the error, he would not have entered the plea." Dominguez
Benitez, 542 U.S. at 83; see also Vonn, 535 U.S. at 72-74. Although
the defendant in Borrero-Acevedo challenged the adequacy of the
district court's inquiry about his waiver of appeal, it appears
that he invoked the deficient inquiry only to challenge the
enforcement of his waiver. The defendant sought to invalidate his
3
As previously discussed, the notes to Rule 11 explicitly
state that "the Committee takes no position on the underlying
validity of such waivers."
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guilty plea on other, non-Rule 11(b)(1)(N) grounds. See Borrero-
Acevedo, 533 F.3d at 15 (describing the appellant's arguments on
the merits as a challenge to "whether his plea was voluntary[,]
given that it was part of a package deal and he might have been
coerced into pleading guilty by a co-defendant"). Nonetheless, we
characterized the flawed plea colloquy in Borrero-Acevedo as an
unpreserved Rule 11(b)(1)(N) error and concluded that -- pursuant
to Dominguez Benitez and Vonn -- we should apply plain error review
in determining whether to enforce the appellate waiver. Hence, we
held that a defendant who seeks non-enforcement of an appellate
waiver must show that, but for an erroneous plea colloquy
pertaining to the waiver, "he would otherwise not have pled
guilty." Borrero-Acevedo, 533 F.3d at 18.
In so holding, we may have mistakenly incorporated Rule
11 standards into the second prong of Teeter's analysis for
appellate waiver enforcement. The Supreme Court's requirement
that a defendant "must show a reasonable probability that, but for
the error, he would not have entered the plea," was articulated in
the context of "a defendant who seeks reversal of his conviction
after a guilty plea." Dominguez Benitez, 542 U.S. at 83. If
imported into the realm of appellate waiver enforcement, the
Dominguez Benitez plain error standard would be significantly more
demanding than the standard set forth in Teeter. Nevertheless,
where a defendant such as Villodas-Rosario raises an omission in
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the plea colloquy inquiry as a basis for the non-enforcement of an
appellate waiver, the conviction itself is not at issue. Arguably,
then, Teeter's tripartite test, and not the plain-error standard
articulated in Dominguez Benitez and Vonn, should remain the
standard used to assess the enforceability of appellate waivers.
In this case, however, -- as explained below -- we need
not reconcile any inconsistency between Teeter and Borrero-
Acevedo.
B. Plea Colloquy Error
Villodas-Rosario avers that his appellate waiver is
unenforceable because the district court's plea colloquy failed to
ensure that he entered into it knowingly and voluntarily. He
argues that the district court not only failed to specifically
address the terms of his appellate waiver, but it also
affirmatively misled him by stating "you can appeal."
As discussed, Villodas-Rosario relies on Teeter in
seeking release from his appellate waiver. See 257 F.3d at 27.
Notably, he does not cite Rule 11(b)(1)(N) in his briefs,
presumably because he is not seeking to vacate his plea. The
government counters that we should enforce the waiver because
Villodas-Rosario has not met the standard set by Borrero-Acevedo:
a showing that, but for the district court's deficient explanation,
he would not have entered the plea. See 533 F.3d at 18.
Notwithstanding this important debate concerning the correct
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analysis, we do not resolve this dispute because Villodas-
Rosario's effort to escape the appellate waiver is unavailing even
under the more defendant-friendly Teeter test.
The first prong of the tripartite Teeter test -- the
clarity of the written waiver provision -- is not contested. The
plea agreement clearly stated that Villodas-Rosario relinquished
the right to appeal if he was sentenced within the agreed-upon
range. It is also beyond debate that the district court failed to
satisfy the second prong's instruction to "inquire specifically at
the change-of-the-plea hearing into any waiver of appellate
rights." Teeter, 257 F.3d at 24. The court's general statements
about appellate waivers were insufficient to ensure Villodas-
Rosario's understanding of his specific waiver. However, an
inadequate colloquy does not end our evaluation of the second
prong. Instead, enforcement of the waiver ultimately depends "upon
what the record shows as to the defendant['s] knowledge (that is,
whether the defendant, notwithstanding the absence of a
particularized inquiry, understood the full significance of the
waiver)." Id.Villodas-Rosario suggests that the district court's
statement "you can appeal" necessarily prevents a finding that he
knew otherwise. To the contrary, we previously have observed that,
"[w]hile broad assurances to a defendant who has waived her
appellate rights (e.g., 'you have a right to appeal your sentence')
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are to be avoided[,] . . . they do not effect a per se nullification
of a plea-agreement waiver of appellate rights." Teeter, 257 F.3d
at 25.
Nowhere does Villodas-Rosario assert that he, in fact,
unknowingly waived his appellate rights. He argues only that the
district court's colloquy was erroneous and misleading. Indeed,
at Villodas-Rosario's sentencing, his counsel acknowledged that
his plea agreement contained a provision that waived his right to
appeal his sentence if he was sentenced "within the range of eight
to 17" years. Neither Villodas-Rosario nor his counsel indicated
any objection to, or concern about, the terms of the waiver after
they were openly discussed.4 Although the relevant knowledge under
Teeter is what Villodas-Rosario knew about the appellate waiver at
the time the plea was accepted, we look to the whole record to
determine what he understood about the waiver when he entered the
plea. See 257 F.3d at 24; see also Borrero-Acevedo, 533 F.3d at
16.
Our review persuades us that Villodas-Rosario understood
at the time he entered his plea that he agreed to forego the right
to appeal if his sentence fell within the provided-for range. The
record does not indicate when he would have allegedly learned of
4
Although the district court reiterated at the end of
sentencing that Villodas-Rosario could appeal, Villodas-Rosario
does not contend that this statement had any effect on whether his
waiver was knowing and voluntary.
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the specifics of his appellate waiver after entry of the plea but
before sentencing. Yet Villodas-Rosario's counsel at the
sentencing hearing -- without prompting by the court and in his
client's presence -- reiterated the defendant's agreement to the
specific appellate waiver provision. Even at that point, when an
opportunity remained to object before his sentence was imposed,
Villodas-Rosario expressed no concern about the waiver. Given the
clarity of the written provision, the lack of objection at any
time to the meaning of the appellate waiver, and defense counsel's
representations to the court, we think it is a fair conclusion
that Villodas-Rosario understood the terms of the appellate waiver
when he entered his plea. His waiver was knowing and voluntary as
required by the first and second Teeter prongs.
C. Miscarriage of Justice
The remaining question under Teeter -- the third prong
-- is whether "denying a right to appeal would work a miscarriage
of justice." 257 F.3d at 25. If such a miscarriage of justice
would occur, we, in our discretion, "may refuse to honor the
waiver." Id.; see also Sotirion v. United States, 617 F.3d 27, 37
(1st Cir. 2010) (holding that, even under the Borrero-Acevedo
analysis, a defendant "must nevertheless be afforded the
opportunity to demonstrate that enforcement of the waiver would
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work a miscarriage of justice").5 We permit appellants to make
miscarriage of justice challenges because "appellate waivers are
made before any manifestation of sentencing error emerges," and so
"appellate courts must remain free to grant relief from them."
Sotirion, 617 F.3d at 36 (quoting Teeter, 257 F.3d at 25) (internal
quotation marks omitted). Although appellate waivers bring
finality to proceedings, they "are not intended to leave defendants
'totally exposed to future vagaries (however harsh, unfair, or
unforeseeable).'" Id. (quoting Teeter, 257 F.3d at 25). That
said, the miscarriage of justice exception is designed "only for
'egregious cases' and is to be applied 'sparingly and without undue
generosity.'" Id. (quoting Teeter, 257 F.3d at 25, 26). The
standard is "demanding enough to prevent defendants who have agreed
to waive their right to appeal from successfully pursuing garden-
variety claims of error." Teeter, 257 F.3d at 26.
Villodas-Rosario argues that "it would be a miscarriage
of justice for this Court to deny him the right to appeal his
5
Borrero-Acevedo questioned, without deciding, whether the
"miscarriage of justice" prong of Teeter survived its
characterization of the proper test for enforcement of appellate
waivers. See Borrero-Acevedo, 533 F.3d at 19 ("[T]he question
after Vonn and Dominguez Benitez is whether there is any
discretionary power left in this court to decline to enforce a
waiver of appeal clause where we conclude that enforcing the waiver
would be a miscarriage of justice."). In a subsequent case,
Sotirion, we held that the miscarriage of justice analysis
articulated in Teeter survived even under the Borrero-Acevedo
standard. See Sotirion, 617 F.3d at 37.
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sentence after the district court expressly advised him that he
did have that right." In other words, Villodas-Rosario's
miscarriage-of-justice claim attempts to reargue the plea colloquy
error that we have already addressed. But the third prong of
Teeter, unlike the first two prongs, is not about the knowing and
voluntary nature of the waiver. See Sotirion, 617 F.3d at 37.
Instead, miscarriage-of-justice analysis provides the court with
an opportunity to release a defendant from an appellate waiver
when errors unrelated to the validity of the waiver are so
egregious that barring the defendant's ability to appeal would
work a "miscarriage of justice." As we have said, there are
"dangers posed by a prospective waiver of the right to challenge
errors that have not yet occurred." Id. (emphasis added). We
gave examples of such errors in Teeter: the use of
"constitutionally impermissible factors (say, race or ethnicity)"
at sentencing, the imposition of a "sentence exceeding the maximum
penalty permitted by law," or the imposition of a sentence that
"violates a material term of the plea agreement[.]" 257 F.3d at25 nn.9 & 10 (internal citations omitted).
The errors claimed by Villodas-Rosario in the merits
portion of his briefing -- the sentence was both procedurally and
substantively unreasonable -- do not begin to suggest a viable
miscarriage-of-justice claim. Procedurally, Villodas-Rosario's
assertion that the district court failed to justify its imposition
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of a sentencing variance is no more than a "garden-variety" claim
specifically barred by an appellate waiver. See Sotirion, 617
F.3d at 38 (quoting Teeter, 257 F.3d at 26). So too with Villodas-
Rosario's substantive challenge to the district court's
discretionary weighing of appropriate sentencing factors. See
United States v. Madera-Ortiz, 637 F.3d 26, 31 (1st Cir. 2011).
Thus, we enforce Villodas-Rosario's appellate waiver, and we
decline to reach the merits of his challenge to his sentence.
Appeal Dismissed.
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