United States v. Pacheco , 921 F.3d 1 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 16-1690
UNITED STATES,
Appellee,
v.
KENNY O. PACHECO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Jean C. LaRocque on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, and Francisco
A. Besosa-Martínez, Assistant United States Attorney, on brief for
appellee.
April 5, 2019

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Defendant Kenny Pacheco
pleaded guilty to conspiracy under the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. § 1962(d), and to using or
carrying a firearm during and in relation to a drug trafficking
crime, 18 U.S.C. § 924(c)(1)(A). The District Court imposed
consecutive sentences of 70 months in prison on the first offense
and 60 months on the second. On appeal, Pacheco argues that his
firearms conviction and sentence duplicate his prior conviction
and sentence for a firearms offense under Puerto Rico law, and
thus violate the Fifth Amendment's guarantee against double
jeopardy.
We conclude that the record as presented here does not
permit evaluation of Pacheco's double jeopardy claim, containing
as it does only the untranslated, Spanish-language judicial
documentation of the Puerto Rico firearms conviction. This is
inadequate by the terms of the Jones Act, 48 U.S.C. § 864, which
prohibits federal courts from considering untranslated documents.
We accordingly dismiss the appeal, but we do so without prejudice
to Pacheco's right to raise his double jeopardy claim on the basis
of translated records in future, collateral-review proceedings.
I
Before reaching the difficulty with the double jeopardy
claim, however, we must resolve a threshold issue: whether
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Pacheco's plea agreement waiving his right to appeal in some
circumstances bars the claim on appeal. We conclude it does not.
A waiver of appellate rights is enforceable provided
that, among other things, the defendant "enter[ed] into the waiver
'knowingly and voluntarily.'" Sotirion v. United States, 617 F.3d
27, 33 (1st Cir. 2010) (quoting United States v. Teeter, 257 F.3d
14, 24 (1st Cir. 2001)). The "text of the written plea agreement
and the change-of-plea colloquy are of critical importance" to the
necessary enquiry, id.: a waiver may be treated as knowing and
voluntary if the written plea agreement "clearly delineates the
scope of the waiver," United States v. González-Colón, 582 F.3d
124, 127 (1st Cir. 2009), and if the change-of-plea colloquy shows
that "the district court specifically inquired . . . about the
waiver" by "questioning of the defendant" sufficient to establish
"that the waiver was knowing and voluntary," id., with respect to
any subsequently contested scope.
The appeal waiver in Pacheco's plea agreement provided
that he "knowingly and voluntarily waives the right to appeal the
judgment and sentence in this case, provided that [he] is sentenced
in accordance with the terms and conditions set forth in the
Sentence Recommendation provisions of this Plea Agreement." Plea
Agreement ¶ 9. If our enquiry ended there, the absence of any
dispute that the total of Pacheco's two sentences was "in
accordance with the[se] terms and conditions" would point to an
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effective knowing and voluntary waiver of the right to appeal the
ensuing judgment and sentence actually imposed.
As just explained, however, reference to the text does
not mark the end of the enquiry, for we also look to the change-
of-plea colloquy. Teeter, 257 F.3d at 24. At Pacheco's colloquy,
the judge detailed the scope of Pacheco's waiver: "There may be
a waiver of appeal in your particular Plea Agreements, but there
is always the possibility of the right to appeal if a sentence is
imposed illegally." Change-of-Plea Tr. 31-32.
In stating that Pacheco could argue on appeal that his
sentence was "imposed illegally," the judge seemed to "contradict
the terms of the written waiver," Sotirion, 617 F.3d at 35, and he
offered no "correction" or modification of that statement during
the rest of the colloquy, Teeter, 257 F.3d at 27. To be sure, at
a later point, the judge did tell Pacheco that he would be "waiving
[his] right to appeal" if he was "sentenced according to the
stipulations that appear in the Plea Agreement." Change-of-Plea
Tr. 45. But the judge never told Pacheco that this subsequent
statement meant that he would be foreclosed from arguing on appeal
that such a sentence was "imposed illegally," id. at 32, or that
a sentence is "imposed illegally" only if it conflicts with "the
stipulations that appear in the Plea Agreement," id. at 32, 45.
The upshot is that we "cannot say with the requisite
assurance" that Pacheco's surrender of his appellate right "was
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sufficiently informed," Teeter, 257 F.3d at 27, insofar as it would
extend to a sentence characterized as "imposed illegally," as
Pacheco claims of the firearms sentence. Indeed, in practical
terms, the judge's explanation during the change-of-plea colloquy
instructed Pacheco that his waiver was not as broad as the literal
terms of the written agreement, and that he was not waiving the
right to appeal any element of the subsequent sentence that could
fairly be characterized as an "illegal" imposition. The Government
did not object to the judge's explanation of the limit on the
waiver, and naturally Pacheco had no objection to conceding less
than he originally had bargained for. At his later sentencing
hearing, Pacheco confirmed his understanding of the scope of his
appeal waiver, making both the court and the Government fully aware
of his position, and there were no objections or clarifications.
He now seeks to enforce the limited scope of his waiver, as it
appears to have been understood by all parties at the conclusion
of the plea colloquy. Cf. United States v. Gil-Quezada, 445 F.3d
33, 37 & n.3 (1st Cir. 2006) (judge's comments at later disposition
hearing have no bearing on extent of any waiver made at prior plea
hearing but may "shed light upon the defendant's understanding at
that time").1
1 Although our conclusion is a product of the colloquy at the
change-of-plea hearing, see Gil-Quezada, 445 F.3d at 36-37, we
have noted, as confirmation, that it is a conclusion accepted by
the court and both parties at the later sentencing hearing. There,
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That is the case here. Accordingly, the appeal waiver
does not bar Pacheco's double jeopardy claim, which "call[s] into
question the Government's power to 'constitutionally prosecute'
him," Class v. United States, 138 S. Ct. 798, 805 (2018) (quoting
United States v. Broce, 488 U.S. 563, 575 (1989)), as the premise
of his contention that the ensuing sentence was illegally imposed.
II
Pacheco asserts that his federal firearms conviction
duplicates his Puerto Rico firearms conviction because the federal
conviction does not "require[] proof of a fact" beyond the facts
required for his Puerto Rico conviction. Blockburger v. United
States, 284 U.S. 299, 304 (1932). He says that the federal
conviction requires proof that he used or carried a firearm "during
and in relation to any crime of violence or drug trafficking
crime," 18 U.S.C. § 924(c)(1)(A), and that his Puerto Rico
conviction required proof of the same fact: Puerto Rico law
provides that the use of an illegal weapon "to commit or attempt
Pacheco's counsel explained that he was "not waiving his
constitutional right to raise [a] double jeopardy claim" on appeal,
Sentencing Hearing Tr. 7, and that he brought the double jeopardy
issue to the District Court's attention so that it would be
"understood to the Court that [he was] not waiving that right,"
id. at 8. The District Court acknowledged counsel's statements
with a one-word answer: "Okay." Id. The Government, meanwhile,
concedes that it did not object to counsel's statements. Appellee
Br. 9. Because our conclusion does not rest on an "unpreserved
Rule 11(b)(1)(N) error," there is no occasion to apply the plain-
error standard of review. United States v. Morillo, 910 F.3d 1,
3 (1st Cir. 2018).
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to commit any crime" is "an aggravating circumstance" that
increases the statutory maximum punishment. 25 L.P.R.A. § 458c.
His position thus depends partly on whether he was convicted of
the aggravated version of the Puerto Rico firearms offense.
When we turn to evaluate the merits of this argument,
however, we hit a roadblock. We cannot determine whether Pacheco
was convicted of the aggravated version of the Puerto Rico offense
because the record on appeal lacks English-language translations
of the Spanish documentation of that earlier conviction, an absence
that implicates the federal Jones Act.
The Jones Act provides that all "pleadings and
proceedings in the United States District Court for the District
of Puerto Rico shall be conducted in the English language," 48
U.S.C. § 864, and one consequence of the requirement that all
"federal court proceedings must be conducted in English," United
States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir. 2002), is that
"federal judges must not consider any untranslated documents
placed before them," United States v. Millán-Isaac, 749 F.3d 57,
64 (1st Cir. 2014). As relevant here, that rule prohibits federal
courts from considering any untranslated, "Spanish-language copy
of a Puerto Rico judgment of conviction." United States v. Reyes-
Rivas, 909 F.3d 466, 468, 470 (1st Cir. 2018). The Act
consequently bars us from taking account of the untranslated court
documents bearing on Pacheco's Puerto Rico firearms conviction and
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"requires that we set [them] aside" without attempting to render
them into English. Id. at 470.
Since the want of a record compliant with the Jones Act
leaves us unable to determine the merits of Pacheco's argument, we
dismiss his appeal. We take no position, however, on the
underlying merits of his claim, and this dismissal is without
prejudice to his right to raise it again in a future, collateral-
review proceeding, as under 28 U.S.C. § 2255.
So ordered.
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