United States v. Neris-Ruiz , 491 F. App'x 199 ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1263
UNITED STATES,
Appellee,
v.
ANGEL LUIS NERIS-RUIZ,
a/k/a Bam Bam, a/k/a Angel Luis Neriz-Ortiz,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Angel Luis Neris-Ruiz on brief pro se.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.
Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodriguez-
Velez, on brief for appellee.
December 5, 2012
Per Curiam. In this direct criminal appeal, Angel Luis
Neriz-Ruiz challenges his guilty plea conviction. After careful
review of the parties' appellate filings and the underlying
criminal record, we conclude that the district court's judgment
should be affirmed.
1. We conclude that Neris-Ruiz knowingly and voluntarily
agreed that if he received a 20-year sentence, which he did, he
would waive his right to appeal his sentence and "the judgment in
this case." In addition, he has not shown that, on this record,
enforcing his appeal waiver works a miscarriage of justice. See
Sotirion v. United States, 617 F.3d 27, 33 (1st Cir. 2010) (the
court enforces knowing and voluntary appeal waivers if doing so
results in no miscarriage of justice). It is true that, during the
change-of-plea hearing, the district court gave somewhat different
descriptions of Neris-Ruiz's appeal waiver. But, ultimately, there
was no ambiguity in its scope, as the hearing transcript confirms.
When the district court first stated that the appeal waiver applied
to Neris-Ruiz's sentence, the court apparently did so to ensure
that Neris-Ruiz knew that if he received the sentence he had agreed
to, he could not appeal it. At the same time, however, the court
emphasized, both before and after so describing the appeal waiver,
that it would later give fuller details of the terms of the
parties' oral plea agreement. And, subsequently, the court
unequivocally informed Neris-Ruiz that he had agreed that if he
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received a 20-year sentence, he would waive his right to file "any
appeal," that any appeal of his would be dismissed, and that he
could not "appeal the sentence and judgment in this case." Equally
unequivocally, Neris-Ruiz confirmed that he understood that fact,
and he agreed that nothing the court had said was a surprise to
him. Under the circumstances, we conclude that we should enforce
the appeal waiver.
2. In any event, if Neris-Ruiz's unpreserved claims of
error under Fed. R. Crim. P. 11 were properly before us, we would
deny them because the plea hearing transcript shows that the
district court substantially complied with Rule 11 requirements.
In short, there was no plain error. See United States v. Borrero-
Acevedo, 533 F.3d 11, 15-16 (1st Cir. 2008) (applicable review
standard).
3. We dismiss Neris-Ruiz's ineffective assistance of
trial counsel claims without prejudice; if he wishes, Neris-Ruiz
may pursue them in a timely-filed 28 U.S.C. § 2255 motion. See
United States v. Torres-Oliveras, 583 F.3d 37, 43 (1st Cir. 2009)
(fact-specific claims of ineffective assistance may not be raised
on direct appeal).
The ineffective assistance claims are dismissed without
prejudice. The judgment of the district court is affirmed.
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