United States v. Rios-Hernandez ( 2011 )

United States Court of Appeals
For the First Circuit
No. 09-2545
UNITED STATES OF AMERICA,
Appellee,
v.
ALVIN RÍOS-HERNÁNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Boudin, Circuit Judge.
Amy R. Silverman, with whom Alan D. Rose and Rose, Chinitz &
Rose, were on brief for appellant.
Carmen M. Márquez, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, Unites States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and Luke Cass, Assistant United States Attorney, were on brief for
appellee.
June 2, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
TORRUELLA, Circuit Judge. Defendant-appellant Alvin
Ríos-Hernández entered into a plea agreement with the government
and pled guilty to one count of taking, by force and "with the
intent to cause death or serious bodily harm . . . a motor vehicle
that has been transported, shipped, or received in interstate or
foreign commerce" in violation of 18 U.S.C. § 2119. He now
challenges (1) the validity of the waiver-of-appeal provision in
the plea agreement, and (2) the enhanced sentence he received
because he was designated as a career offender. Although we do not
consider the appeal foreclosed by the waiver-of-appeal provision,
we find that his appeal does not withstand the onerous burden of
plain error review and we therefore affirm the district court's
sentence.
I. Background
When considering a sentencing appeal following the entry
of a guilty plea, we gather the facts from the change-of-plea
colloquy, the plea agreement and the uncontested portions of the
presentence investigation report (the "PSI"). United States v.
Madera-Ortiz, No. 10-1474, 2011 U.S. App. LEXIS 3754, at *1 (1st
Cir. Feb. 25, 2011); United States v. Fernández-Cabrera, 625 F.3d
48, 50 (1st Cir. 2010); Sotirion v. United States, 617 F.3d 27, 30
(1st Cir. 2010). On November 3, 2008, a man drove his 2005 white
Toyota Echo to the beach in Aguadilla, Puerto Rico. Ríos-Hernández
attacked the man with a knife, abandoned him at the scene, and took
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his car. The victim sustained serious bodily injuries. Ríos-
Hernández later abandoned the car in Isabela, Puerto Rico.
The federal grand jury charged Ríos-Hernández with one
count of taking, by force and with the intent to cause death or
serious bodily harm, a motor vehicle that had been transported,
shipped, or received in interstate or foreign commerce in violation
of 18 U.S.C. § 2119. Ríos-Hernández and the government entered
into a plea agreement pursuant to Federal Rule of Criminal
Procedure 11(c)(1). The agreement provided that Ríos-Hernández
would plead guilty to the count charged in the indictment and that
the parties would recommend that the court sentence him to the
lower end of the applicable guideline range. The parties did not
stipulate as to the defendant's criminal history category. The
plea agreement did, however, outline his sentencing exposure and
provide estimated guideline sentencing ranges for criminal
categories one through six.
The plea agreement also contained a waiver-of-appeal
provision which stated, "The defendant hereby agrees that if this
Honorable Court accepts this Plea Agreement and sentences him
according to its terms, conditions and recommendations, defendant
waives and surrenders his right to appeal the judgement [sic] and
sentence in this case."
During the change-of-plea colloquy, which took place on
June 12, 2009, the court addressed the defendant to ensure he
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understood that he was waiving certain rights due to his guilty
plea. The court specifically questioned the defendant regarding
the waiver-of-appeal provision in the plea agreement:
THE COURT: You could appeal a sentence
imposed under the guidelines, but your Plea
Agreement is going to contain a waiver of
appeal clause. That means there will be no
appeal in this case. Do you understand that?
THE DEFENDANT: Yes.
MR. GUZMÁN [Defense counsel]: Your Honor,
just to be absolutely sure that we're
straight, Your Honor, Paragraph 17 I think is
the waiver of appeal, and we adhere to that as
written in the Plea Agreement.
THE COURT: Absolutely, and you know if
something extraordinary happens I will let him
appeal.
MR. GUZMÁN: I understand, Your Honor.
THE COURT: Okay. If the sentence that you
receive is more severe than what you expect,
that by itself will not allow you to withdraw
your plea. Is that clear?
THE DEFENDANT: Yes.
The United States Probation Office filed the PSI on
October 14, 2009. The PSI classified Ríos-Hernández as a career
offender pursuant to the U.S. Sentencing Guidelines ("Sentencing
Guidelines"), U.S. Sentencing Guidelines Manual ("U.S.S.G.")
§ 4B1.1 (2009), based on two prior felony convictions for crimes of
violence -- a violation of P.R. Laws Ann. tit. 8, § 633, the Abuse
by Threat statute, for which he was arrested on November 25, 2004,
and a violation of P.R. Laws Ann. tit. 8, § 631, the Abuse statute,
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for which he was arrested on September 28, 2006. In the sentencing
memorandum that he submitted on October 19, 2009, Ríos-Hernández
argued that he should not be classified as a career offender.
Defense counsel argued that "even though Mr. Rios technically
qualifies as a career offender, the circumstances herein were not
those envisioned by that guideline section. . . . The career
offender guideline was not meant to be triggered by two prior
convictions involving consensual mutual combat between two
individuals who chose this behavior as their lifestyle." Ríos-
Hernández's sentencing memorandum also explained that "[t]he
relationship between [Ríos-Hernández] and his common law
wife . . . has been described as mutually combative. They were
both using drugs and . . . under the influence [when] they fought.
When the fights occurred, his wife would report them to the police.
He never did."
The sentencing was held on October 20, 2009. Defense
counsel objected again to Ríos-Hernández's classification as a
career offender, making the same arguments that he made in the
sentencing memorandum. The following exchange took place during
the sentencing hearing:
MS. MÁRQUEZ [for the government]: Your Honor,
as far as the Government goes, we agreed to
recommend a sentence of . . . 25 -- just at
the offence level 25, but we didn't know what
criminal history.
. . . .
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THE COURT: But what criminal history -- can I
see the Plea Agreement?
MR. GUZMÁN: Yes, Your Honor.
MS. MÁRQUEZ: Yes, Your Honor. There is no
stipulation as to the Criminal History
Category, Your Honor. Just level 25, lower
end of the applicable guidelines.
THE COURT: You consider all the possibilities
here, 25, and [the Criminal History Category]
went from I to VI.
MS. MÁRQUEZ: Exactly, and no stipulation,
Your Honor.
THE COURT: And the stipulation was that he be
sentenced to the lower end of the applicable
guidelines?
MS. MÁRQUEZ: Exactly.
. . . .
THE COURT: I'm saying rather than using a VI
and a 31, rather than using a BOL of 31 and a
Criminal History Category of VI, use a 25 with
a Criminal History Category of VI. That fits
exactly within the Plea Agreement.
MS. MÁRQUEZ: Okay.
MR. GUZMÁN: Okay. I mean I'm saying okay
like if I had a say in this. I understand
what you're saying.
. . . .
MS. MÁRQUEZ: Your Honor, just that we stand
by the Plea Agreement, and we recommend the
lower end of the applicable guideline.
. . . .
THE COURT: . . . I'd rather sentence him at
the level contemplated by the parties in the
Plea Agreement, which is a BOL of 25, Criminal
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History Category of VI. That gives us a
Guideline Imprisonment Range of 110 to 137
months; a fine range of 10,000 to 100,000; and
supervision of at least two to five.
. . . .
THE COURT: . . . And I will sentence him to
120 months, which is kind of a middle range;
no fine; and five years of supervision under
the standard conditions . . . .
. . . .
Even though he waives his right to appeal in
this case, I am going to recognize his right
to have the sentence reviewed by the Court of
Appeals.
The defendant was classified as a career offender under
U.S.S.G. § 4B1.1 because he had two predicate offenses. The
district court entered judgment on October 20, 2009. The court
sentenced the defendant to a term of one hundred and twenty months
of imprisonment and five years of supervised release. Ríos-
Hernández filed a notice of appeal on October 22, 2009.
II. Discussion
Ríos-Hernández argues that his waiver-of-appeal is
invalid because the district court's statements at the change-of-
plea hearing and at the sentencing were so misleading that his
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waiver-of-appeal was not knowing and voluntary.1 On appeal, he
seeks to challenge his classification as a career offender.
A. Presentence Waiver of Appellate Rights
A criminal defendant may waive his right to appeal as
long as his waiver is voluntary and made with knowledge of the
consequences of the waiver. United States v. Teeter, 257 F.3d 14,
21, 24 (1st Cir. 2001). In order to ensure that such waiver is
knowing and voluntary, the Federal Rules of Criminal Procedure
require that the court "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). To determine the
validity of a waiver of rights, we focus on the plea agreement and
the change-of-plea colloquy. Teeter, 257 F.3d at 24. In
particular, we determine (1) whether the written plea agreement
"contains a clear statement elucidating the waiver and delineating
its scope"; (2) "whether the court's interrogation suffices to
ensure that the defendant freely and intelligently agreed to waive
[his] right to appeal [his] forthcoming sentence"; and (3) whether
"denying a right of appeal would work a miscarriage of justice[.]"
Id. at 24-25.
1
The appellant claims that the following statements were
misleading: 1) "you know if something extraordinary happens I will
let him appeal"; and 2) "Even though he waives his right to appeal
in this case, I am going to recognize his right to have the
sentence reviewed by the Court of Appeals."
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We must construe plea agreements and waiver-of-appeal
provisions therein according to basic contract principles. United
States v. Acosta-Román, 549 F.3d 1, 3 (1st Cir. 2008). Any
ambiguities should be resolved in favor of allowing the appeal to
proceed. Fernández-Cabrera, 625 F.3d at 51.
We assume, without deciding, that the waiver of appellate
rights would have been valid under Teeter, see 257 F.3d at 24-25,
but we will consider the merits because we find that the district
court failed to sentence the defendant according to the agreed upon
recommendation, and that the defendant's waiver was conditional on
receiving a sentence consistent with that recommendation.2 See
Fernández-Cabrera, 625 F.3d at 51 (finding that the waiver-of-
appeal provision did not prevent defendant's appeal where the court
did not follow the parties' joint recommendation and the waiver-of-
appeal provision was conditional on the court sentencing the
defendant according to the parties' joint recommendation).
We find that Fernández-Cabrera controls in this case.
There, we allowed the appeal to proceed despite the fact that the
defendant signed a plea agreement with a waiver-of-appeal provision
because the district court did not follow the parties' joint
sentencing recommendation. Id. The language of the waiver
provision in Fernández-Cabrera was such that the waiver "[did] not
2
We therefore need not address whether the district court's
statements at the change-of-plea hearing and the sentencing would
have nullified the waiver.
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attach unless the district court ha[d] 'sentence[d] the defendant
according to the sentencing recommendations contemplated [in the
plea agreement].'" Id. Similarly, the language in Ríos-
Hernández's plea agreement states that he waives and surrenders his
right to appeal "if [the] Honorable Court . . . sentences him
according to [the plea agreement's] terms, conditions and
recommendations" (emphasis added). The sentencing recommendation
in the Fernández-Cabrera plea agreement was "a joint entreaty that
the district court sentence the defendant to a term of imprisonment
'equal to the lower end of the applicable guidelines.'" Id.
Likewise, the sentencing recommendation in the Ríos-Hernández plea
agreement was "that the defendant be sentenced to the lower end of
the applicable guidelines." Finally, like in Fernández-Cabrera,
where the district court sentenced the defendant to a mid-range
sentence instead of the low-end sentence recommended in the plea
agreement, id., the district court sentenced Ríos-Hernández to a
"middle range" sentence. Here, the condition upon which the
waiver-of-appeal depended -- that the defendant's sentence be in
the lower end of the applicable guidelines -- was not satisfied.
We acknowledge that there is a difference between the
sentencing recommendation in Fernández-Cabrera and the
recommendation in the present case. The parties in Fernández-
Cabrera were sure that the guideline sentencing range was between
thirty and thirty-seven months, id., whereas the parties in this
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case knew only that the offense level was twenty-five; there was no
stipulation as to the defendant's criminal history category.
However, regardless of the applicable criminal history category,
the court sentencing Ríos-Hernández recognized that "the
stipulation was [that] he be sentenced to the lower end of the
applicable guidelines[,]" noted that the applicable range was 110
to 137 months, and yet decided to "sentence [Ríos-Hernández] to 120
months, which is kind of a middle range." We conclude that "the
waiver-of-appeal provision, as framed, was relegated to the scrap
heap[,]" id., and we therefore proceed to the merits.
B. Career Offender Classification
Ríos-Hernández argues that the district court erred in
classifying him as a career offender pursuant to section 4B1.1 of
the Sentencing Guidelines because his conviction under Puerto
Rico's Abuse by Threat statute, P.R. Laws Ann. tit. 8, § 633, is
not a crime of violence. The government contends that the
defendant waived this argument because it is different from the one
he presented below. In the sentencing memorandum filed in the
district court, Ríos-Hernández objected to the conclusion in the
PSI that he was a career offender pursuant to U.S.S.G. § 4B1.1,
arguing that "[t]he career offender guideline was not meant to be
triggered by two prior convictions involving consensual mutual
combat between two individuals who chose this behavior as their
lifestyle." Although this is a general objection to the
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defendant's classification as a career offender, it was not
sufficient to give the district court notice of the specific issue
raised here -- that the court should have used the categorical
approach to determine whether the defendant's conviction under the
Abuse by Threat was a "crime of violence." See United States v.
Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009) (applying plain error
review to an argument on appeal where the defendant's generic
objection could not "be fairly interpreted as giving notice to the
court of the[] . . . very specific issues [on appeal]"). We
conclude that Ríos-Hernández's argument in the district court is
sufficiently different from the one raised on appeal that the
argument is forfeited and will be reviewed for plain error. United
States v. Capozzi, 486 F.3d 711, 718 (1st Cir. 2007) (noting that
an argument that was forfeited would be reviewed only for plain
error); United States v. Lilly, 13 F.3d 15, 17-18 & n.6 (1st Cir.
1994) (noting that legal arguments cannot be interchanged at will
and determining that an argument not squarely raised in the lower
court is waived, except where the error is plain).
A party seeking to survive the onerous challenge of plain
error review "must show: '(1) that an error occurred (2) which was
clear and obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'"
Ahrendt, 560 F.3d at 76 (quoting United States v. Duarte, 246 F.3d
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56, 60 (1st Cir. 2001)). We conclude that the appellant does not
clear the high bar to surpass plain error review. Lilly, 13 F.3d
at 18 n.6 ("The criteria for a finding of plain error in the
sentencing context are . . . rigorous.").
Assuming, without deciding, that an error occurred, we
find that Ríos-Hernández does not satisfy the second criterion of
the plain error standard. The error, namely, the failure to use
the categorical approach to determine whether the defendant's prior
conviction under the Abuse by Threat statute was a "crime of
violence," United States v. Almenas, 553 F.3d 27, 33 (1st Cir.
2009), was not clear and obvious.3 The defendant's sentencing
memorandum stated that "even though Mr. Rios [sic] technically
qualifies as a career offender, the circumstances here were not
those envisioned by that guideline section[,]" (emphasis added) and
described the prior convictions as "involving consensual mutual
3
The categorical approach requires a court to compare the
statutory definition of the relevant offense with the definition of
"crime of violence," as stated in section 4B1.2 of the Sentencing
Guidelines. Taylor v. United States, 495 U.S. 575, 600 (1990);
Almenas, 553 F.3d at 33. If the court determines that the language
of the statute is "broad enough to criminalize both violent and
non-violent conduct," the court must take a second step and
"determine whether a defendant was actually charged with an offense
that involved violent or potentially violent conduct." United
States v. Williams, 529 F.3d 1, 4 (1st Cir. 2008). When conducting
the second step of the categorical approach, the court may look to
"charging documents filed in the court of conviction, . . .
recorded judicial acts of that court, . . . a bench-trial judge's
formal rulings of law and findings of fact, and in pleaded cases .
. . a transcript of [the] plea colloquy or [the] written plea
agreement presented to the court . . . ." Shepard v. United
States, 544 U.S. 13, 20 (2005).
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combat." At the sentencing hearing, defense counsel again
characterized the prior offenses in the same way. The district
court could have reasonably interpreted the statements in the
defendant's sentencing memorandum and his counsel's statements
during the sentencing hearing as acquiescence that both domestic
violence convictions involved (1) statutes containing "the
use . . . or threatened use of physical force against the person of
another" as an element or (2) offenses that "involve[] conduct that
presents a serious potential risk of physical injury to another."
See U.S.S.G. § 4B1.2. Given this apparent acquiescence to the
characterization of the prior convictions as crimes of violence and
the lack of objection to the court's reliance on the PSI as a
source of information about the nature of the prior convictions, we
cannot say that it would have been clear and obvious to the
district court4 that it should have conducted the categorical
approach and possibly probed further into the record of conviction.
See United States v. Jiménez, 512 F.3d 1, 7 (1st Cir. 2007)
4
We note that we may examine an error that was not clear and
obvious to the district court where the error becomes clear on
appeal because settled law subsequently changes. United States v.
Dancy, No. 09-2628, 2011 WL 1418854, at *8 (1st Cir. Apr. 13, 2011)
(noting that plain error review applies to an argument that was not
raised in the district court and settled law has changed between
trial and appeal); United States v. Barone, 114 F.3d 1284, 1294
(1st Cir. 1997) ("'[I]n a case such as this-where the law at the
time of trial was settled and clearly contrary to the law at the
time of appeal-it is enough that an error be "plain" at the time of
appellate consideration[.]'" (quoting Johnson v. United States, 520
U.S. 461, 468 (1997))).
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("Where, as here, the characterization of an offense contained in
a presentence report is not disputed before the sentencing court,
the report itself is competent evidence of the fact stated and,
thus, is sufficient proof of that fact."); United States v.
Turbides-Leonardo, 468 F.3d 34, 38-39 (1st Cir. 2006) (finding no
clear and obvious error where defendant seemingly acquiesced to the
characterizations and computations contained in the PSI report and
the district court therefore did not employ the categorical
approach to determine whether the prior conviction was a predicate
offense qualifying him for a sentencing enhancement). The
defendant failed to satisfy the second requirement to show that
there was plain error.
III. Conclusion
Because appellant fails to meet the onerous plain error
standard of review, we affirm.
Affirmed.
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