United States v. Sevilla-Oyola ( 2014 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 12-1264, 12-1463
    UNITED STATES,
    Appellee,
    v.
    CARLOS SEVILLA-OYOLA,
    a/k/a Carlitos Caridad, a/k/a Viejo,
    Defendant, Appellant.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. José Antonio Fusté, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Torruella and Thompson, Circuit Judges.
    Rafael F. Castro Lang for appellant.
    César S. Rivera-Giraud, Assistant United States Attorney, with
    whom 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,
    were on brief, for appellee.
    June 3, 2014
    THOMPSON, Circuit Judge.        Sometimes it's better to quit
    while you're ahead.         The district judge twice conducted plea
    colloquies and thrice imposed sentences for Carlos Sevilla-Oyola
    ("Sevilla"), each one shorter than the last.           Still dissatisfied,
    Sevilla asks us for another bite at the sentencing apple before a
    different district judge.       To support his claim before this court,
    Sevilla says the district judge lacked authority for actions taken
    after entry of the first sentence, and flaws in the initial plea
    colloquy warrant vacation of the first judgment. Alternatively, he
    says that even if the judge's later actions were authorized, they
    were plagued by additional errors.
    We   agree   that   the   district    judge    lacked   statutory
    authority to act after he entered the original sentence and that
    the initial plea colloquy was flawed.           But we cannot say that the
    imperfections     Sevilla   cites     justify    setting   aside    the   first
    judgment.    Nor can we say, based on the arguments Sevilla puts
    forth before us, that the first sentence was unreasonable.
    Accordingly, the first and most severe sentence imposed by the
    district judge — 327 months plus a consecutive term of life
    imprisonment — stands.      And Sevilla — who until today was facing a
    total sentence of 405 months — will likely find himself wishing he
    had left well enough alone.
    -2-
    BACKGROUND
    On July 14, 2010, Sevilla and 108 codefendants were
    indicted as part of a vast drug ring operating in and around
    several public housing projects in Bayamón, Puerto Rico.         The
    indictment charged Sevilla with (1) conspiring to possess narcotics
    with intent to distribute, in violation of 21 U.S.C. §§ 841(a), 860
    ("Count One"), and (2) aiding and abetting his coconspirators in
    the use and carriage of firearms in relation to a drug-trafficking
    crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count Two").    It
    singled out Sevilla as a leader, manager, and enforcer for the
    drug-trafficking organization.
    A. The First Guilty Plea
    On August 9, 2011, Sevilla entered into an agreement with
    the government, pleading guilty to both counts of the indictment.
    The parties stipulated that Sevilla was accountable for conspiring
    to possess at least 2 but less than 3.5 kilograms of cocaine.   This
    amount pegged Sevilla's base offense level at 28 under the U.S.
    Sentencing Guidelines (the "Guidelines").    See U.S.S.G. § 2D1.1.
    The parties further agreed that Sevilla would be subject to a two-
    level protected-location increase, see 
    id. § 2D1.2(a)(1);
    a two-
    level leadership enhancement, see 
    id. § 3B1.1(c);
    and a three-level
    acceptance-of-responsibility reduction, see 
    id. § 3E1.1,
    resulting
    in a total offense level of 29.    The parties did not come together
    -3-
    on Sevilla's criminal-history category, but they agreed to forgo
    seeking further adjustments or departures.
    In the agreement, Sevilla acknowledged that the district
    judge retained his sentencing discretion and was not bound by the
    parties' accord.   Sevilla also waived his right to appeal if the
    judge "accept[ed] [the] agreement and sentence[d] [him] according
    to its terms, conditions, and recommendations."
    At the change-of-plea hearing that same day, the district
    judge advised Sevilla of the statutory penalties for the charged
    offenses based on the stipulated drug quantity: (1) a mandatory
    minimum term of five years and a maximum term of eighty years of
    imprisonment as to Count One, see 21 U.S.C. §§ 841(b)(1)(ii), 860;
    and (2) a consecutive minimum term of five years of imprisonment as
    to Count Two, see 18 U.S.C. § 924(c)(1)(A)(i).1
    The judge failed to inform Sevilla that Count Two carried
    the possibility of a life sentence.   See United States v. Ortiz-
    Garcia, 
    665 F.3d 279
    , 282 n.2, 285 (1st Cir. 2011) (explaining that
    the maximum penalty for an offense under 18 U.S.C. § 924(c)(1)(A)
    1
    After setting out the mandatory minimum and statutory
    maximum penalties on Count One, the judge (somewhat unclearly) told
    Sevilla he also had "a consecutive term of imprisonment of I think
    it's five years on account of the firearms." Then, when explaining
    the Guidelines range that applied to Sevilla under the plea
    agreement, the judge stated the range for Count One, "plus 60
    months mandatory" on Count Two.
    -4-
    is life imprisonment and is derived from case law).2          However, he
    did draw Sevilla's attention to the penalties mentioned in the plea
    agreement, which correctly stated that the maximum penalty for
    Count Two was life imprisonment, and Sevilla said he understood.
    The judge also neglected to tell Sevilla that he did not qualify
    for probation, a suspended sentence, or parole.3
    B. Pitufo Enters the Scene
    The U.S. Probation Office filed Sevilla's pre-sentence
    investigation report on November 18, 2011. It applied a four-level
    leadership enhancement, rather than the two levels agreed upon by
    the parties, bumping Sevilla's total offense level up to 31. Based
    on   Sevilla's   five   prior   convictions   —   including   two   violent
    2
    This court did not explicitly recognize that 18 U.S.C.
    § 924(c)(1)(A) had a maximum penalty of life imprisonment until we
    decided Ortiz-Garcia in December 2011 — several months after
    Sevilla's August 2011 plea 
    colloquy. 665 F.3d at 285-86
    . However,
    we explained there that when Ortiz-Garcia pleaded guilty — in June
    2010 — the district judge in his case should and did already know
    the maximum penalty under the statute; he simply forgot to state it
    at the change-of-plea hearing. 
    Id. at 282,
    285-86. It appears the
    same thing happened here, where, as the judge later candidly
    admitted, he mistakenly missed stating the maximum penalty while
    taking Sevilla's plea.
    3
    Federal Rule of Criminal Procedure 11 ("Rule 11") requires
    a district judge to address a defendant in open court before
    accepting a guilty plea in order to ensure the defendant
    understands the consequences of his plea.       Fed. R. Crim. P.
    11(b)(1). Among other things, as part of this colloquy, the judge
    must inform the defendant of "any maximum possible penalty" before
    accepting the plea. Fed. R. Crim. P. 11(b)(1)(H). The rule does
    not require the judge to tell the defendant about eligibility for
    probation, a suspended sentence, or parole. See Fed. R. Crim. P.
    11(b)(1).
    -5-
    felonies — it also labeled Sevilla a career offender and set his
    criminal-history category at VI.4
    Shortly thereafter, Sevilla filed objections to the pre-
    sentence report as well as a memorandum disputing the augmented
    leadership enhancement and his designation as a career offender.
    The Probation Office followed up with an addendum standing by its
    recommendations.
    Then, on January 13, 2012, the Probation Office dropped
    a bombshell on the proceedings.     In a second addendum to the pre-
    sentence report, the Office alleged for the first time that Sevilla
    had murdered José Manuel Torres-Morales, a.k.a. "Pitufo" (or, in
    English, "Smurf"), in front of the federal courthouse in Hato Rey,
    Puerto Rico, on November 9, 2007.       Pitufo was a fellow drug-ring
    member who was then under federal supervision.      The brazen murder
    of a federal supervisee outside the courthouse rocked the Puerto
    Rican legal community to its core.
    4
    Sevilla committed the two most violent offenses roughly one
    month apart in 1996. First, on May 25, Sevilla and others fired
    shots at a car carrying three individuals. Sevilla was arrested
    and charged with attempted murder, among other things. Then, on
    July 10, while out on state bond, Sevilla again fired shots at a
    vehicle.    This time the car belonged to the state witness
    protection program.    Inside were two police officers and four
    civilians, including an infant. Only one person was hurt. Sevilla
    was charged with six more counts of attempted murder and several
    weapons offenses. He pleaded guilty to both sets of charges on May
    7, 1997, and was subsequently sentenced to twelve years for the
    first shooting and eight years for the second shooting, to run
    concurrently.
    -6-
    No one has ever been charged with this notorious murder.
    The Probation Office learned of Sevilla's alleged involvement from
    a cooperating witness, Carlos Manuel Burgos Rodriguez ("Burgos"),
    also a fellow drug-ring member, who claimed that Sevilla admitted
    to killing Pitufo.5   After reading the allegations in the second
    addendum, the district judge ordered the government to produce
    Burgos at Sevilla's sentencing hearing.   Sevilla did not object to
    this order, did not argue the judge could not consider the Pitufo
    information, and did not ask for a continuation of the hearing.
    C. The First Sentencing Hearing
    Sevilla's first sentencing hearing took place on January
    25, 2012. Burgos took the stand to testify about Sevilla's alleged
    role in the Pitufo murder. He was questioned by the government and
    cross-examined by defense counsel.   Notably, defense counsel did
    not argue that Burgos's testimony was impermissible and instead
    objected only on the basis that she needed more time to prepare.
    The district judge denied the objection because the second addendum
    to the pre-sentence report, filed twelve days prior, provided
    sufficient notice, and because counsel had not sought a continuance
    5
    Burgos first mentioned Sevilla's involvement in the Pitufo
    murder briefly during his testimony before a grand jury. Sevilla
    suspects the government played some part in notifying the probation
    officer of this testimony, which led the officer to interview
    Burgos and to amend Sevilla's pre-sentence investigation report
    with the Pitufo murder information. But it is unclear from the
    record how the probation officer in fact learned of Burgos's
    statements.
    -7-
    before the hearing.     Sevilla subsequently testified on his own
    behalf, disclaiming any involvement in the Pitufo murder and
    challenging the trustworthiness of Burgos's testimony.
    At the hearing's conclusion, the judge made several
    findings.     First, considering Sevilla's serious criminal past
    (especially   his   prior   violent   felony   convictions),   the   judge
    confirmed Sevilla's designation as a career offender who belonged
    in criminal-history category VI.6         Then, considering Burgos's
    testimony about Sevilla's alleged role in the Pitufo murder, as
    well as Sevilla's testimony denying any involvement, the judge
    found that the career-offender and criminal-history-category-VI
    labels underrated the seriousness of Sevilla's criminal past.7
    6
    The judge stressed that Sevilla's past convictions were not
    for so-called "Mickey Mouse" or "heartland" crimes, but rather were
    "a string of amazing convictions which include crimes of violence"
    like "[s]hooting at vehicles" and "[t]rying to kill witnesses in a
    witness protection program while . . . released on bail from the
    other major case of attempted murder."
    7
    Throughout the hearing, the district judge — who had been
    chief judge of the federal courthouse when Pitufo was killed –
    expressed his outrage and dismay at the havoc the murder had
    wreaked on the court system. For example, he said:
    The murder stopped the operation of this court.
    The murder not only stopped the operation of this
    court for almost a whole day, it was a disaster
    what happened here. The FBI had to take control of
    the building. We didn't know where this was coming
    from. Can you imagine, allowing somebody to use the
    perimeter of this court to kill supervisees?
    Imagine getting involved to the point that you're
    basically    interfering   with   the    legitimate
    governmental function of administering justice. Can
    you imagine that? They killed him right in front
    -8-
    Accordingly, the judge departed upward to offense level 38, which
    is accompanied by a Guidelines sentence range of 360 months to
    life.     Given   the   depraved   nature   and    devastating     impact   of
    Sevilla's offenses, the judge determined that the highest available
    sentence was appropriate.      Consequently, he sentenced Sevilla to
    life imprisonment.
    The following day, the judge issued an order apportioning
    Sevilla's    sentence   into   327   months   on    Count   One    and   life
    imprisonment on Count Two, to run consecutively.8 Judgment entered
    against Sevilla on January 26.
    of the courthouse.       Right in front of              the
    courthouse. . . . It was a horrible thing.
    8
    At the January 25 hearing, the judge had said:
    I am sentencing the defendant to life imprisonment,
    and that will include of course the consecutive
    sentence that had to be imposed on the firearms,
    because it would be ridiculous to impose a life
    term plus five years. That doesn't make any sense.
    The dissent says this "strongly suggests that Sevilla was sentenced
    to life imprisonment on Count 1," i.e., above the 80-year statutory
    maximum, "and a five-year term on Count 2." But on January 26, the
    judge offered an alternative explanation: On January 25, he had
    intended "to look at the two counts together and, after making the
    corresponding departures, sentence the [d]efendant to life
    imprisonment." Then, realizing that he should have apportioned the
    sentence between the counts, see United States v. Zavala-Marti, 
    715 F.3d 44
    , 51 n.6 (1st Cir. 2013) (explaining that "the proper
    procedure is to render a separate sentence on each count" (internal
    quotation marks and citation omitted)), on January 26 he divided
    the total life sentence imposed on January 25 among Counts One and
    Two. Sevilla has not challenged the judge's authority to apportion
    the sentence and treats the January 25 and January 26 sentences as
    one sentence.
    -9-
    D. Subsequent Proceedings
    A few days later, on February 1, 2012, Sevilla moved to
    set aside the judgment and to correct, reduce, and reconsider his
    sentence, citing Federal Rule of Criminal Procedure 35(a) ("Rule
    35(a)").9    Sevilla said the district judge had erred at the
    sentencing hearing by considering the Pitufo murder where (1) that
    crime had not been included in the indictment, and (2) according to
    Sevilla, defense counsel had not been given adequate time to
    prepare to refute the allegations before the hearing.
    Soon after filing, Sevilla's lawyer fell ill and had to
    undergo emergency surgery.   As a result, the district judge could
    not hold a hearing on Sevilla's motion before Rule 35(a)'s strict
    fourteen-day deadline expired.
    However, on February 8, one day before the fourteen-day
    buzzer sounded, the district judge sua sponte issued an order
    purporting to correct Sevilla's sentence under Rule 35(a) on
    different grounds.     The order sought to rectify two alleged
    sentencing mistakes.    First, the judge said he had intended to
    sentence Sevilla to 960 months on Count One, followed by life
    imprisonment on Count Two, but he had erroneously entered only 327
    months on Count One.      Second, the judge pointed out that the
    9
    Rule 35(a) permits a district judge to correct a sentence
    within fourteen days after sentencing if it "resulted from
    arithmetical, technical, or other clear error." Fed. R. Crim. P.
    35(a). More on this later.
    -10-
    sentence imposed on Count Two was defective under Federal Rule of
    Criminal Procedure 11 ("Rule 11") because he had not informed
    Sevilla during the plea colloquy that Count Two carried a maximum
    penalty of life imprisonment.   To correct these errors, the judge
    upped Sevilla's sentence to 960 months on Count One and reduced it
    to 60 months on Count Two, to run consecutively for a total of 1020
    months (85 years).   Amended judgment entered on February 8, 2012.
    In the same order, the judge scheduled a hearing a few
    days later to consider Sevilla's unresolved Rule 35(a) motion from
    February 1. That hearing was subsequently postponed to February 22
    at defense counsel's request.
    On February 22, the day of the hearing, Sevilla filed a
    second motion requesting (1) recusal of the district judge due to
    bias and personal knowledge; (2) a Santobello hearing to determine
    whether the government had breached the plea agreement;10 and (3)
    vacation of the February 8 judgment because Rule 11 errors at the
    change-of-plea hearing could not be corrected in a Rule 35(a)
    order.    The motion also highlighted a litany of supposed Rule 11
    violations in the plea colloquy beyond the judge's admitted failure
    to advise Sevilla of Count Two's maximum penalty.11    Chief among
    10
    For those not in the know, Santobello v. New York, 
    404 U.S. 257
    , 262 (1971), stands for the proposition that prosecutors must
    abide by their plea agreements.
    11
    Specifically, Sevilla claimed the judge had violated Rule
    11 when he failed to:
    -11-
    them was that the judge had neglected to inform Sevilla that parole
    had   been   abolished   from   the    federal   penal   system.   Sevilla
    maintained that these additional alleged errors could "only be
    corrected by an appeal and remand, or by allowing [Sevilla] to
    withdraw his plea," and not by the district judge issuing an order
    under Rule 35(a).12
    1)     inquire as to whether [Sevilla] had the plea
    agreement translated to him word for word;
    2)     ask . . . whether [defense counsel] had
    translated the plea agreement [for Sevilla];
    3)     ask whether [Sevilla] was aware that he had
    the right to summon witnesses living beyond
    the jurisdiction of Puerto Rico pursuant to
    Rule 17;
    4)     ask whether [Sevilla] was aware that he had
    the right to assist his attorney to select a
    jury of his peers and to execute peremptory
    challenges and challenges for cause;
    5)     ask whether . . . Sevilla was aware that
    parole had been abolished in the federal
    system;
    6)     ask whether [Sevilla] fully understood the
    parameters of the waiver of appeal provision;
    7)     ask whether [defense counsel] had explained
    the   application   of  the   guidelines   to
    [Sevilla's] case;
    8)     ask whether [defense counsel] had reviewed
    discovery with [Sevilla] and whether he had
    received discovery of the evidence;
    9)     ask whether [Sevilla] had been told that he
    had a right to be appointed counsel under the
    Criminal Justice Act if he could not continue
    to afford to . . . pay a private attorney, if
    he elected to go to trial.
    12
    In the motion, Sevilla asked for an opportunity to withdraw
    his plea, but said he would do so only if the judge first made
    "specific protective findings of fact and conclusions of law,"
    that, among other things, would require the government to offer
    him the same plea agreement after withdrawal and would give him
    time to investigate the Pitufo murder allegations before
    -12-
    At the hearing that day, the district judge considered
    both Sevilla's February 1 and February 22 motions.13    Afterwards,
    the judge issued another order under Rule 35(a) — this time
    purporting to set aside both the original guilty plea and the
    February 8 amended sentence to remedy his failure at the colloquy
    to inform Sevilla about the maximum penalty on Count Two and the
    impossibility of parole.14   The judge noted, however, that the plea
    agreement still stood, and said he would schedule a new change-of-
    plea hearing after he issued a separate written ruling denying
    Sevilla's recusal and Santobello requests.
    resentencing. But at the hearing that followed, Sevilla's counsel
    informed the judge that Sevilla "[did] not want to reopen the
    hearing," and instead wanted to file an appeal, as he did later
    that day.
    13
    As a reminder, unlike the February 22 motion (which
    criticized the judge's attempt to invoke Rule 35(a)), the February
    1 motion asked the judge to act under Rule 35(a). It claimed the
    judge had erred by considering the Pitufo murder at sentencing and
    requested that the judge set aside the original January 26 judgment
    and correct the original January 26 sentence.
    14
    The judge knew that his failure to warn Sevilla that parole
    was unavailable was not, by itself, a violation of Rule 11. See
    Johnson v. United States, 
    650 F.2d 1
    , 4 (1st Cir. 1981). However,
    "the very purpose of Rule 11 . . . 'is to advise a defendant of the
    actual consequences of his plea so that he can realistically decide
    whether to plead guilty.'" United States v. Rivera-Maldonado, 
    560 F.3d 16
    , 20 (1st Cir. 2009) (quoting United States v. Santo, 
    225 F.3d 92
    , 98 (1st Cir. 2000)). And, as the judge explained, his
    omission regarding parole could have undermined Sevilla's
    understanding of the consequences of his plea, even though Rule 11
    did not expressly require the judge to discuss it.
    -13-
    Later that day, Sevilla filed a notice of appeal from
    both the amended judgment of February 8 and the February 22 order
    intended to set aside that judgment.
    On February 28, while that appeal was pending, the
    district judge issued the promised written order denying Sevilla's
    recusal and Santobello requests.       The judge then scheduled a
    supplemental plea colloquy and resentencing hearing for March 8.
    He further announced he would not consider the Pitufo murder at the
    resentencing hearing, as Sevilla had requested in his February 1
    motion.   To explain his decision, the judge cited such factors as
    the timing and seriousness of the accusation, the fact that Sevilla
    had never been charged with that crime, and the judge's own
    concerns for justice, fairness, and due process.
    On March 3, Sevilla moved to vacate the judge's order
    scheduling the supplemental plea colloquy and resentencing hearing,
    arguing that the judge had no authority to conduct the colloquy or
    to further modify his sentence because Rule 35(a) was not an
    appropriate vehicle for correcting Rule 11 errors.
    Thereafter, on March 5, we issued an order deferring our
    consideration of Sevilla's appeal until after the newly scheduled
    plea and resentencing proceedings, so that any subsequent appeal
    could be consolidated with the pending appeal.
    On March 6, the district judge denied Sevilla's motion to
    vacate his order scheduling the supplemental plea and resentencing
    -14-
    hearings.15   Then, on March 8, over Sevilla's objection that a full
    colloquy was required, the district judge conducted a truncated
    supplemental plea colloquy to ensure Sevilla understood that the
    maximum possible penalty for Count Two, specifically, was life
    imprisonment, and that he was ineligible for parole, probation, or
    a suspended sentence.       Although defense counsel requested an
    entirely new colloquy, the judge did not conduct one because he
    thought there was "no point in repeating" what had already been
    said.      Instead, the judge advised Sevilla of the information
    missing from the initial colloquy and asked if Sevilla wanted to
    abide by the plea agreement.    Sevilla said yes.16
    Four days later, on March 12, the judge held Sevilla's
    resentencing hearing.    Even without considering the Pitufo murder,
    given Sevilla's extensive criminal history, the judge again applied
    the   career-offender   guideline    and   varied   upward.   The   judge
    sentenced Sevilla to 345 months on Count One and 60 months on Count
    15
    In the March 6 order, the judge explained that "Rule 35(a)
    and Rule 11 were not the exclusive reasons for setting aside the
    sentence." Rather, the judge claimed (for the first time) to have
    acted also under a grant of common-law authority to reconsider and
    reduce a sentence upon reflection. See United States v. Benz, 
    282 U.S. 304
    , 306-07 (1931). Neither party has made a Benz argument on
    appeal, and therefore we do not address it.
    16
    We pause to remind the reader that at the initial colloquy,
    the judge had drawn Sevilla's attention to the penalties mentioned
    in the plea agreement — which correctly stated that the maximum
    penalty for Count Two was life imprisonment — and Sevilla told the
    judge that he understood.
    -15-
    Two, to run consecutively for a total of 405 months (33 years and
    9 months).     Judgment entered on March 13, 2012.
    On March 27, Sevilla filed an amended notice of appeal,
    challenging (1) all three judgments (January 26, February 8, and
    March 13); (2) the February 22 order purporting to vacate the
    February 8 judgment; and (3) the February 28 order denying his
    recusal and Santobello requests.
    DISCUSSION
    Sevilla raises a panoply of issues on appeal.         He claims
    that (1) the district judge lacked authority to issue the February
    8 amended judgment, as well as authority to take all subsequent
    actions; (2) both the initial and supplemental plea proceedings
    were defective; (3) the final sentence was unreasonable; and (4)
    the judge erred in rejecting his recusal and Santobello requests.
    The   government   counters   that    the   appeal   waiver   in   the   plea
    agreement bars this challenge.        But we bypass this issue because
    Sevilla's claims, if successful, could invalidate both the plea
    -16-
    itself and the waiver of his right to appeal.17              And so we forge
    ahead with the merits of Sevilla's appeal.
    A. The District Judge's Authority
    1. Rule 35(a)
    Sevilla first argues that Rule 35(a) did not empower the
    district judge to issue the February 8 judgment, which modified the
    original January 26 judgment by boosting Sevilla's sentence from
    327 months to 960 months on Count One and cutting his sentence from
    life imprisonment to 60 months on Count Two. Consequently, Sevilla
    says, the February 8 judgment (and all of the judge's subsequent
    actions) was null and void.
    On appeal, the government concedes that Rule 35(a) did
    not authorize the district judge's actions on February 8.                 No
    matter, the government says — the judge derived his power to take
    subsequent     action   from   28   U.S.C.   §   2255,   a    habeas   corpus
    17
    Ordinarily, a court will consider whether a waiver of appeal
    is enforceable before proceeding to the merits of the case. See,
    e.g., United States v. Acosta-Roman, 
    549 F.3d 1
    , 3 (1st Cir. 2008).
    This is because "under ordinary circumstances, a knowing, voluntary
    waiver of the right to appeal from a sentence, contained in a plea
    agreement, ought to be enforced . . . [a]bsent some convincing
    countervailing argument." United States v. Teeter, 
    257 F.3d 14
    , 23
    (1st Cir. 2001) (footnote omitted). However, a court may opt to go
    directly to the merits of an appeal where a defendant who has
    entered a guilty plea and agreed to waive his right to appeal seeks
    to challenge an aspect of the plea which, "'if successful, would
    invalidate both the plea itself and the waiver of his right to
    appeal.'" See United States v. Chambers, 
    710 F.3d 23
    , 27 (1st Cir.
    2013) (quoting United States v. Santiago Miranda, 
    654 F.3d 130
    , 136
    (1st Cir. 2011)).
    -17-
    provision.18   But before we tackle the government's fallback habeas
    position, we explain why we agree that Rule 35(a) did not empower
    the judge to act on February 8.
    We review issues of law, including the district judge's
    interpretation of a Federal Rule of Criminal Procedure, de novo.
    United States v. Leja, 
    448 F.3d 86
    , 92 (1st Cir. 2006) (citing
    United States v. Encarnacion, 
    239 F.3d 395
    , 397 (1st Cir. 2001)).
    Rule 35(a) empowers a district judge to "correct a
    sentence that resulted from arithmetical, technical, or other clear
    error" within fourteen days after sentencing.      Fed. R. Crim. P.
    35(a).    The function of Rule 35(a) is narrowly circumscribed: It
    "permit[s] correction . . . of an illegal sentence."        Hill v.
    United States, 
    368 U.S. 424
    , 430 (1962).    For Rule 35(a) purposes,
    a sentence is illegal if "[t]he punishment meted out was . . . in
    excess of that prescribed by relevant statutes, multiple terms were
    . . . imposed for the same offense, . . . [or] the terms of the
    sentence itself [were] legally or constitutionally invalid in any
    respect."    
    Id. Rule 35(a)
    does not, on the other hand, enable a
    judge to fix errors committed at trial or during proceedings prior
    to the imposition of sentence.    
    Id. As such,
    Rule 35(a) does not
    provide a means to revisit possible errors in the plea colloquy.
    18
    Section 2255 enables a federal prisoner to move the court
    that imposed his sentence "to vacate, set aside[,] or correct the
    sentence" based on one of four grounds. 28 U.S.C. § 2255. We'll
    discuss this more fully below.
    -18-
    See United States v. Vinyard, 
    539 F.3d 589
    , 594 (7th Cir. 2008)
    (finding Rule 35(a) was not an appropriate vehicle for addressing
    possible Rule 11(b)(1)(H) violation in plea colloquy).
    When vacating the January 26 sentence and imposing an
    amended sentence on February 8, the district judge invoked Rule
    35(a) to correct two purported errors: (1) the judge's self-
    professed mistaken entry of a sentence of 327 months, rather than
    960 months, on Count One; and (2) the judge's failure to inform
    Sevilla during the plea colloquy that Count Two carried a maximum
    penalty of life imprisonment.    Because neither of these alleged
    infirmities resulted in an illegal sentence, Rule 35(a) by its
    terms does not provide a cure for either.
    First, the 327-month sentence that the judge says he
    entered mistakenly on Count One was not "illegal" in the sights of
    Rule 35(a).     It was not in excess of statutory limits.     See 21
    U.S.C. §§ 841(b)(1)(ii), 860 (setting the maximum penalty at eighty
    years, or 960 months).    It did not impose multiple terms for the
    same offense.   See 
    Hill, 368 U.S. at 430
    .   And no one has argued it
    was otherwise legally or constitutionally invalid.     See 
    id. Second, the
    Rule 11 defect diagnosed by the judge in the
    plea colloquy — namely, the judge's failure to tell Sevilla that
    Count Two was punishable by life imprisonment — occurred before
    sentencing and, thus, is not a sentencing error.     It is therefore
    -19-
    decidedly outside the bounds of the type of glitch that Rule 35(a)
    is designed to mend.   See id.; 
    Vinyard, 539 F.3d at 594
    .
    Accordingly, like the parties, we conclude that the
    district judge could not rely on Rule 35(a) for authority to issue
    the February 8 judgment aiming to remedy mistakes he spotted in the
    January 26 judgment.
    2. Section 2255
    The question, then, is whether 28 U.S.C. § 2255 gave the
    judge power to act on or after February 8.19
    Before us, the government argues for the first time that
    Sevilla's February 22 motion — requesting recusal, a Santobello
    hearing, and vacation of the February 8 judgment for lack of
    authority, as well as alleging a string of Rule 11 errors in the
    plea colloquy — authorized the judge's actions on or after February
    8 because the motion functioned as a collateral attack on Sevilla's
    conviction and sentence under § 2255.   Sevilla did not caption the
    motion under any particular rule or statute, but simply dubbed it
    an "omnibus motion regarding sentencing."   And the district judge
    19
    As a quick recap, the judge's post-February-8 actions were:
    (1) on February 22, he issued an order intended to set aside the
    February 8 amended sentence and the original plea due to Rule 11
    errors; (2) on February 28, he issued an order denying Sevilla's
    recusal and Santobello requests and scheduling a new change-of-plea
    hearing; (3) on March 8, he conducted a supplemental plea colloquy;
    and (4) on March 12, he re-sentenced Sevilla.
    -20-
    clearly viewed it as another Rule 35(a) motion.20       Nonetheless,
    because "a motion's character depends upon its substance, not its
    appellation," United States v. Ortiz, 
    741 F.3d 288
    , 291 (1st Cir.
    2014), the government says we can and should treat the February 22
    motion as a § 2255 challenge based on its content, even though it
    does not wear a § 2255 label.
    We begin with a brief § 2255 primer.     Section 2255
    appears in the chapter devoted to habeas corpus and gives a federal
    prisoner a means to collaterally attack his sentence.     28 U.S.C.
    § 2255(a).    Specifically, it permits a prisoner to move the court
    that imposed his sentence "to vacate, set aside, or correct the
    sentence" because (1) "the sentence was imposed in violation of the
    Constitution or laws of the United States," (2) "the court was
    without jurisdiction to impose such sentence," (3) "the sentence
    was in excess of the maximum authorized by law," or (4) the
    sentence "is otherwise subject to collateral attack."    
    Id. Notwithstanding this
    broad language, a § 2255 motion
    alleging a violation of federal law is generally cognizable only if
    it involves "a fundamental defect [that] inherently results in a
    complete miscarriage of justice, [or] an omission inconsistent with
    the rudimentary demands of fair procedure." 
    Hill, 368 U.S. at 428
    ;
    20
    The February 22 order responding, in part, to the February
    22 motion, explicitly states:    "Sentence vacated under Fed. R.
    Crim. P. 35(a), correcting for clear error emanating from the
    defective plea colloquy."
    -21-
    see also United States v. Vonn, 
    535 U.S. 55
    , 63-64 (2002) (quoting
    United States v. Timmreck, 
    441 U.S. 780
    , 784 (1979)).                By this
    standard, § 2255 relief is not available to remedy "a failure to
    comply   with    the   formal    requirements   of   a   rule   of   criminal
    procedure," absent any evidence of prejudice or other injury to the
    defendant.      See Davis v. United States, 
    417 U.S. 333
    , 346 (1974)
    (internal quotation marks and citation omitted).           In particular, a
    defendant will "'rarely, if ever, be able to obtain relief for Rule
    11 violations under § 2255,'" United States v. Borrero-Acevedo, 
    533 F.3d 11
    , 17 (1st Cir. 2008) (quoting United States v. Dominguez
    Benitez, 
    542 U.S. 74
    , 83 n.9 (2004)), because such errors seldom
    result   in    the   type   of   "complete   miscarriage   of   justice"   or
    proceeding "inconsistent with the rudimentary demands of fair
    procedure" that deserves redress under the statute, see 
    Timmreck, 441 U.S. at 784
    (finding the court's failure to inform defendant of
    special parole term, in violation of Rule 11, was not a fundamental
    defect).
    Moreover, a defendant usually gets only "one complete
    round of collateral review" under § 2255. Melton v. United States,
    
    359 F.3d 855
    , 857 (7th Cir. 2004); see Munoz v. United States, 
    331 F.3d 151
    , 153 (1st Cir. 2003) (per curiam).          Second or successive
    § 2255 motions are severely limited and require certification by
    the appropriate court of appeals.        28 U.S.C. § 2255(h); see Castro
    v. United States, 
    540 U.S. 375
    , 377, 382 (2003); Munoz, 331 F.3d at
    -22-
    153.    Accordingly, though we may choose to recharacterize a motion
    styled otherwise as falling under § 2255 based on its content,
    Trenkler     v.   United   States,   
    536 F.3d 85
    ,   97    (1st   Cir.   2008)
    (compiling cases), we must be mindful that doing so may deprive a
    defendant of his chance to bring a second, possibly stronger claim
    under that statute, see 
    Castro, 540 U.S. at 377
    , 382; 
    id. at 387
    (Scalia, J., concurring).21
    Against this backdrop, we choose not to recast Sevilla's
    February 22 motion in a § 2255 mold.          No one below - not Sevilla,
    not    the   government,    and   certainly   not   the      district   judge   -
    considered the motion under § 2255. Before us, only the government
    says we should view the motion under § 2255.              This was Sevilla's
    motion, not the government's, and the important concerns outlined
    above counsel against our recharacterizing the motion under that
    statute.
    21
    This risk prompted the Supreme Court to limit the courts'
    recharacterization powers with respect to pro se litigants (who,
    presumably,   are    less   aware   of   the    consequences   of
    recharacterization than those with counsel) in the following way:
    [T]he court cannot . . . recharacterize a pro se
    litigant's motion as the litigant's first § 2255
    motion unless the court informs the litigant of its
    intent to recharacterize, warns the litigant that
    the recharacterization will subject subsequent §
    2255 motions to the law's "second or successive"
    restrictions, and provides the litigant with an
    opportunity to withdraw, or to amend, the filing.
    
    Castro, 540 U.S. at 377
    , 383 (emphasis in original).
    -23-
    Accordingly, we find that the February 22 motion — which
    we view as decided only pursuant to Rule 35(a) — did not provide
    the judge with authority for his post-February-8 actions by way of
    § 2255, and the January 26 order remained the final order of the
    court.22    We therefore need not reach Sevilla's arguments that (1)
    the   supplemental   plea   colloquy   was   defective;   (2)   the   final
    sentence imposed was unreasonable; and (3) the district court erred
    in not granting Sevilla's February 22 recusal and Santobello
    requests.     Rather, we now turn to Sevilla's direct appeal of the
    January 26 judgment.
    22
    Sevilla argued the district judge lost power to act in his
    case after he filed his first notice of appeal on February 22
    challenging both the February 8 amended sentence and the February
    22 order purporting to vacate that sentence (though it was not
    until March 27 that he amended his appeal to include challenges to
    the original judgment and subsequent orders and judgments). "As a
    general rule, with only limited exceptions, entry of a notice of
    appeal divests the district [judge] of jurisdiction to adjudicate
    any matters related to an appeal." United States v. Martin, 
    520 F.3d 87
    , 97 (1st Cir. 2008) (internal quotation marks and brackets
    omitted) (quoting United States v. Distasio, 
    820 F.2d 20
    , 23 (1st
    Cir. 1987)). "This rule applies with equal force to sentencing."
    
    Distasio, 820 F.2d at 23
    . Thus, Sevilla says, his notice of appeal
    suspended the judge's power to modify his sentence, and all the
    judge's later actions were null and void. Sevilla does not explain
    how his later-in-time February 22 notice of appeal could have
    divested the judge of jurisdiction for the earlier-in-time February
    22 order. But because we find the judge lacked authority pursuant
    to Rule 35(a) for his post-February-8 actions anyway, we need not
    spin our wheels trying to pin down Sevilla's argument on this
    point.
    -24-
    B. The Initial Guilty Plea
    Most   curiously,   before   us,   Sevilla    seems   to   have
    forgotten what brought him here in the first place.              At the
    February 22 hearing, when the district judge asked Sevilla what he
    wanted to do about alleged Rule 11 defects in the initial plea
    colloquy, Sevilla insisted he wanted to address those defects on
    appeal rather than reopen the plea proceedings.        However, he says
    little in his brief about the impact of Rule 11 errors in the
    initial colloquy on the first judgment, and instead focuses his
    attacks on purported errors at the supplemental plea level.
    Arguments raised in only a perfunctory and undeveloped
    manner are deemed waived on appeal.    Rodríguez v. Municipality of
    San Juan, 
    659 F.3d 168
    , 175 (1st Cir. 2011); United States v.
    Zannino, 
    895 F.2d 1
    , 17 (1st Cir. 1990). Sevilla's entire argument
    about the effect of Rule 11 errors in the first colloquy on the
    first judgment is as follows:
    Pursuant to this Court's opinion in [United
    States v. Ortiz-Garcia, 
    665 F.3d 279
    , 287-89
    (1st Cir. 2011),] the District Court's failure
    to inform [Sevilla] at the change of plea
    hearing that the maximum sentence for [Count
    Two] was life imprisonment instead of the 5
    years mentioned mandates setting aside the
    final judgment entered on [January 26], where
    a life sentence was imposed on [Count Two]. .
    . . The Change of Plea transcript does not
    inform him of a maximum time of life
    imprisonment and [it] is by no means clear he
    would have [pleaded] guilty under those
    circumstances.   The case should be remanded
    for resentencing before a different District
    Court judge. (Emphasis added.)
    -25-
    Though Sevilla has identified an error and a possible argument —
    that he might not have pleaded guilty but for the error — he has
    done so only "in the most skeletal way, leaving the court to do
    counsel's work, create the ossature for the argument, and put flesh
    on its bones."   
    Zannino, 895 F.2d at 17
    .   This we will not do.   
    Id. As a
    result, Sevilla's Rule 11 claims are not merely
    forfeited and subject to plain error review — as they would be
    because Sevilla did not object on Rule 11 grounds during the
    initial colloquy or move to withdraw his plea in the district
    court.23 See United States v. Anderson, 
    745 F.3d 593
    , 598 (1st Cir.
    2014); United States v. Ortiz-Garcia, 
    665 F.3d 279
    , 285 (1st Cir.
    2011) (reviewing underlying Rule 11 claim for plain error because
    defendant failed to object to the error or move to withdraw his
    plea in the district court); Igartúa v. United States, 
    626 F.3d 23
           The dissent says "Sevilla had no reasonable opportunity to
    discover and raise the Rule 11 error during the sentencing hearing,
    prior to the sentence's imposition" because the life term on Count
    Two was not imposed in writing until January 26, 2012 — the day
    after the sentencing hearing. However, this overlooks Sevilla's
    failure to object at the plea colloquy on August 9, 2011 — when the
    error occurred — or anytime thereafter before the sentence was
    imposed. Though Sevilla did eventually raise Rule 11 issues before
    the district court and move to withdraw his plea, it was not until
    his February 22, 2012 motion — after sentence had been imposed and
    after the district judge had sua sponte recognized and attempted to
    correct the Rule 11 error (though he lacked power to do so under
    Rule 35). And when the judge asked Sevilla at the hearing on that
    motion if indeed he wanted to reopen the hearing, Sevilla's counsel
    responded that while Sevilla wanted to "stand[] by all his
    arguments in the [February 22 motion]," he "[did] not want to
    reopen the hearing," and instead wanted to file an appeal, as he
    did later that day. Accordingly, were Sevilla's Rule 11 claims not
    waived before us, they would at least be forfeited.
    -26-
    592, 603 (1st Cir. 2010) ("[A]rguments that are not raised in a
    timely manner are forfeited," and "[p]lain error review may be
    available for forfeited arguments.").             Rather, because Sevilla did
    not adequately challenge these errors on appeal, his Rule 11 claims
    are waived entirely.      See 
    Anderson, 745 F.3d at 598
    ; 
    Igartúa, 626 F.3d at 603
      (explaining    that    plain    error   review    "is   seldom
    available for claims neither raised below nor on appeal").
    Though we may, on rare occasion, exercise our discretion
    to address waived arguments — for instance, when they become
    available only as a result of intervening changes in law — we see
    no reason to do so here.         See 
    Anderson, 745 F.3d at 598
    ; 
    Igartúa, 626 F.3d at 603
    ("Review is unavailable for waived arguments unless
    the court engages in the rare exercise of its power to excuse
    waiver."     (internal   quotation       marks    and   citation    omitted)).
    Furthermore, even if we did exercise our discretion to hear
    Sevilla's Rule 11 claims, they would not survive the high hurdle of
    plain error review.      See 
    Anderson, 745 F.3d at 598
    (citing United
    States v. Padilla, 
    415 F.3d 211
    , 218-19 (1st Cir. 2005) (en
    banc)).24    Thus, we turn to Sevilla's first sentence.
    24
    To demonstrate plain error, Sevilla would need to show that
    "(1) [a Rule 11] error occurred; (2) the error was plain; (3) the
    error affected the defendant's substantial rights; and (4) the
    error 'seriously affected the fairness, integrity or public
    reputation of judicial proceedings.'" 
    Ortiz-Garcia, 665 F.3d at 285
    (brackets omitted) (quoting 
    Rivera-Maldonado, 560 F.3d at 19
    ).
    To satisfy the third prong, Sevilla must demonstrate there is "'a
    reasonable probability that, but for the error, he would not have
    entered the plea.'" 
    Id. at 286
    (quoting Dominguez Benitez, 542
    -27-
    C. First Sentence
    It   also   appears   to    have   slipped   Sevilla's   mind   to
    challenge his first sentence — 327 months on Count One, followed by
    a consecutive term of life imprisonment on Count Two — on appeal.
    In his brief, he mainly focuses on the alleged unreasonableness of
    the third sentence he received — 345 months on Count One and 60
    months on Count Two, to run consecutively for a total of 405 months
    (33 years and 9 months).        But because Sevilla does make some
    argument regarding one aspect of the first sentence — namely, the
    district judge's consideration of the Pitufo murder at the first
    U.S. at 76).
    Assuming the judge plainly erred by failing to advise Sevilla
    that Count Two carried the possibility of a life sentence, see Fed.
    R. Crim. P. 11(b)(1)(H), Sevilla nevertheless cannot satisfy the
    third prong of the plain error test. To succeed, Sevilla would
    have to demonstrate that, if the judge had informed him of Count
    Two's maximum penalty, there is a reasonable probability he would
    not have pleaded guilty. But the plea agreement Sevilla signed
    explicitly stated the correct maximum penalty, and he assured the
    judge during the colloquy that he understood the maximum penalties
    listed in that agreement. Cf. 
    Ortiz-Garcia, 665 F.3d at 285
    , 288
    (finding a reasonable probability that defendant would not have
    entered guilty plea but for Rule 11 error where plea agreement did
    not include maximum penalty and court did not mention maximum
    penalty at change-of-plea hearing). So Sevilla cannot meet the
    third prong, and the judge's failure to warn Sevilla of Count Two's
    maximum penalty was not plain error.
    As for the other alleged Rule 11 violation — the judge's
    failure to warn Sevilla he was ineligible for parole — Rule 11 does
    not require a judge to inform a defendant of his parole
    ineligibility. See Johnson v. United States, 
    650 F.2d 1
    , 4 (1st
    Cir. 1981).     Thus, this omission was not error — plain or
    otherwise.
    -28-
    sentencing hearing — we will not deem this particular argument
    waived.25   Cf. 
    Anderson, 745 F.3d at 598
    .
    We review for abuse of discretion a district judge's
    decision to consider particular information at sentencing.   United
    States v. Greig, 
    717 F.3d 212
    , 217-18 (1st Cir. 2013). By statute,
    "[n]o limitation shall be placed on the information concerning the
    background, character, and conduct of a person . . . which a
    [judge] . . . may receive . . . for the purpose of imposing an
    appropriate sentence."    18 U.S.C. § 3661.   Moreover, a sentencing
    judge is affirmatively required to consider "the history and
    characteristics of the defendant."     18 U.S.C. § 3553(a)(1).   And
    the sentencing judge has discretion to judicially find facts
    informing the sentence based upon a preponderance of the evidence,
    "provided that any such fact does not trigger a mandatory minimum
    punishment or alter a statutory maximum, and that the ultimate
    sentence remains within the range of penalties set forth in the
    statute of conviction."    United States v. Doe, 
    741 F.3d 217
    , 234
    (1st Cir. 2013).
    25
    In the section of his brief urging the district judge's
    recusal, Sevilla claims it was wrong for the judge to consider the
    Pitufo murder during the first sentencing hearing.        However,
    Sevilla does not reprise his second argument pertaining to the
    first sentencing from his February 1 motion that defense counsel
    had not been given adequate time to prepare to refute the Pitufo
    murder allegations before the first sentencing hearing. Thus, that
    argument is waived. See 
    Anderson, 745 F.3d at 598
    .
    -29-
    Information about the Pitufo murder — as it was relevant
    to   Sevilla's   background,    character,    conduct,     history,     and
    characteristics — is precisely the type of evidence that the
    sentencing judge is authorized by statute to consider.               See 18
    U.S.C. §§ 3553(a)(1), 3661. Furthermore, it was within the judge's
    discretion to find facts about the Pitufo murder by a preponderance
    of the evidence at sentencing, as the judge's consideration of that
    murder did not modify the mandatory minimums or statutory maximums
    applicable to Sevilla, or result in a sentence beyond the range of
    penalties specified in the statutes of conviction.          Sevilla does
    not argue otherwise before us now.
    Accordingly, the judge did not abuse his discretion by
    considering   the   Pitufo   murder   information   at   Sevilla's    first
    sentencing hearing.26   As a result, Sevilla's first sentence — 327
    26
    The judge's proper consideration of the Pitufo murder,
    standing alone, also was not evidence of bias warranting the
    judge's disqualification. Therefore, Sevilla's argument that the
    judge abused his discretion by refusing to disqualify himself, to
    the extent it relies on the judge's consideration of this
    information, fails. See United States v. Snyder, 
    235 F.3d 42
    , 46
    (1st Cir. 2000) (explaining that we apply an abuse of discretion
    standard when a trial judge refuses to recuse himself).
    Furthermore, it was proper for the judge to take into account the
    Pitufo murder's impact on the community during sentencing. See
    United States v. Politano, 
    522 F.3d 69
    , 74-75 (1st Cir. 2008)
    (explaining that the sentencing judge is permitted to consider the
    characteristics of the community in which a defendant's conduct
    arose and the conduct's impact on the community). Thus the judge
    likewise did not abuse his discretion by refusing to disqualify
    himself on that basis.
    -30-
    months on Count One plus a consecutive term of life imprisonment on
    Count Two — stands.
    PARTING WORDS
    We acknowledge that our result may seem harsh.           Where
    Sevilla once faced 405 months' imprisonment, now he must grapple
    with a life sentence.       But Sevilla chose to proceed with this
    appeal knowing he risked a higher sentence.
    At oral argument, we explicitly asked Sevilla's counsel
    if Sevilla understood that this appeal could subject him to a
    sentence based on consideration of his alleged involvement in the
    Pitufo murder and longer than the 405-month term ultimately imposed
    by the district judge.     We sought confirmation that Sevilla wished
    to appeal anyway.      On the spot, counsel asserted that Sevilla
    understood these risks, but he agreed to call Sevilla to confirm.
    A few days later, counsel filed an unresponsive motion
    that did not address whether Sevilla understood the risks he faced
    by seeking vacation of the third and most favorable 405-month
    sentence.     We then entered a written order again instructing
    counsel to inquire whether Sevilla wished to pursue the appeal even
    though   "re-sentencing    in    this   matter   presented   the   risk   to
    [Sevilla] of receiving a sentence greater than his current sentence
    of 405 months and up to life imprisonment, particularly if the
    district    court   were   to   consider   either   [Sevilla's]    alleged
    involvement in the 'Pitufo' murder or calculate a base sentencing
    -31-
    level   and    make   appropriate   upward   departures."   (Emphasis   in
    original.)      Counsel filed a second motion saying he had explained
    those risks to Sevilla and Sevilla still wished to proceed.
    While our order focused on the risk of a life sentence
    upon re-sentencing before the district court, the propriety of a
    life sentence was clearly before us in this appeal. And because we
    expressly warned Sevilla that a life sentence remained on the
    table, though the outcome we reach is not what Sevilla hoped for,
    at least it should come as no surprise.
    CONCLUSION
    With our work finished, we affirm the initial guilty plea
    and the original January 26 sentence of 327 months on Count One and
    a consecutive term of life imprisonment on Count Two.          We vacate
    all subsequent judgments and orders of the district court.
    -Dissenting Opinion Follows-
    -32-
    TORRUELLA, Circuit Judge, Dissenting.     Carlos Sevilla-
    Oyola ("Sevilla") was sentenced by the district court to 405 months
    in prison.    On appeal, he brings to our court's attention numerous
    errors. The majority, finding several of these claims meritorious,
    has granted a most unusual form of "relief" –- life in prison.
    From that irrational result, I respectfully dissent.
    I. The Comedy of Sentencing Errors
    This tale of judicial woe begins at Sevilla's plea
    colloquy, which occurred on August 9, 2011.   There, the sentencing
    judge informed Sevilla, correctly, that he faced a statutory
    maximum of eighty years for Count 1 of his indictment, conspiracy
    to possess narcotics with intent to distribute, pursuant to 21
    U.S.C. § 841(a).    The judge, however, failed to inform Sevilla of
    the statutory maximum for Count 2 of his indictment.        Although a
    conviction for aiding and abetting in the use and carry of a
    firearm in relation to a drug-trafficking crime, pursuant to
    § 924(c)(1)(A), is punishable by a term of life in prison, the
    judge only informed Sevilla that Count 2 carried a term of "60
    months mandatory."    Sevilla pleaded guilty to both counts.
    Sentencing proved a confusing process, replete with
    mistakes and misstatements on the part of the sentencing judge. It
    began on January 25, 2011, when the sentencing judge orally
    pronounced Sevilla's sentence.     As recited, the sentence was as
    follows: "life imprisonment, and that will include of course the
    -33-
    consecutive sentence that had to be imposed on the firearms,
    because it would be ridiculous to impose a life term plus five
    years.      That doesn't make any sense."27
    On   January   26,   the    sentencing    judge   set   this    oral
    sentence down in writing.          In apparent contrast to the prior day's
    pronouncement, the written sentence imposed a term of 327 months on
    Count 1 and life imprisonment on Count 2. The judge explained that
    his oral pronunciation of the sentence had been a misstatement,
    requiring correction by way of apportionment.28
    On February 1, 2012, Sevilla filed a motion, seeking a
    correction, reduction, or modification of his sentence.                   Before
    that     motion    was   considered,       however,    the   sentencing      judge
    independently undertook to correct additional errors in Sevilla's
    sentence.     On February 8, 2012, the judge issued a written order.
    Therein, he stated that although he had "intended to enter an Order
    apportioning the sentence to 80 years on Count 1 (960 months)," he
    27
    Although this statement strongly suggests that Sevilla was
    sentenced to life imprisonment on Count 1 and a five-year term on
    Count 2, the next day the sentencing judge proffered a different
    explanation. He had simply forgotten to apportion the sentence
    between the counts. See United States v. Zavala-Martí, 
    715 F.3d 44
    , 51 & n.6 (1st Cir. 2013). If read as imposed, without the
    benefit of the sentencing judge's subsequent written clarification,
    the life sentence on Count 1 would have exceeded the statutory
    maximum of eighty years.
    28
    The sentencing judge explained that he had intended "to look
    at the two counts together and, after making the corresponding
    departures, sentence defendant to life imprisonment." As modified,
    the sentence imposed was not a combined term of life imprisonment,
    however, but a combined term of life-plus-327-months.
    -34-
    had mistakenly entered a sentence of 327 months.29      In the same
    order, the judge acknowledged that Count 2 of the written sentence,
    subjecting Sevilla to life in prison, also "suffer[ed] from a
    defect": when the judge conducted Sevilla's plea colloquy he failed
    to mention that this count could carry a maximum term of life in
    prison.     Undertaking to correct both of these mistakes, the judge
    entered a new sentence.     This time, Sevilla was sentenced to 960
    months' imprisonment on Count 1 and 60 months' imprisonment on
    Count 2. The judge purported to act under Federal Rule of Criminal
    Procedure 35(a).
    On February 22, 2012, Sevilla filed another motion,
    specifically noting the defective Rule 11 plea colloquy and seeking
    to withdraw his plea.    A hearing on this motion was held the same
    day.    At this hearing, Sevilla stated that he could seek to appeal
    the sentence rather than undergo additional corrections at the
    district-court level.    The sentencing judge admitted that Sevilla
    could utilize appellate review, but attempted to dissuade him from
    doing so:
    [COUNSEL]: . . . [H]e could proceed to file a
    Notice of Appeal today, and that would be his
    right to proceed.
    THE COURT: He could, and you are going to get
    with that where we are now, a remand for a --
    a remand to strike the plea and setting the
    matter again in the normal course of events.
    [COUNSEL]: All right. In light --
    29
    Correcting this "typographical" error increased Sevilla's
    sentence on Count 1 by fifty-two years and nine months.
    -35-
    THE COURT: For new plea negotiations or for
    whatever, trial, as the case may be.
    Eventually, the sentencing judge extended Sevilla's right to appeal
    by thirty days.   Sevilla agreed with this course of action, but
    stated that he intended to file a "protective Notice of Appeal," so
    as to preserve his claims in case the court of appeals later
    determined the judge was, indeed, without power to resentence. With
    both Sevilla and the government in agreement that the plea colloquy
    was defective, the judge then issued an order "set[ting] aside the
    sentence imposed, as well as the plea colloquy that resulted in the
    Defendant's entry of a plea of guilty."
    On February 28, 2012, the sentencing judge published an
    order that, among other things,30 set forth a schedule for a
    supplemental   plea   colloquy.     Sevilla   filed   another   motion,
    asserting that the sentencing judge had no power to conduct a
    supplemental plea colloquy or enter additional modifications to his
    sentence, as Federal Rule of Criminal Procedure 35(a) was not an
    appropriate vehicle through which to correct Rule 11 errors.
    On March 6, 2012, the sentencing judge responded, stating
    that the "Opinion and Order of February 28, 2012, should have made
    clear that Rule 35(a) and Rule 11 were not the exclusive reasons
    30
    The sentencing judge also listed eight reasons why he would
    not consider the "Pitufo murder" in crafting a modified sentence.
    As the majority notes, it was within the sentencing judge's
    discretion to determine whether or not consideration of this
    uncharged conduct was appropriate. Here, he ultimately determined
    it was not.
    -36-
    for setting aside the sentence, as defendant contends."31 The judge
    claimed to have acted, as well, under a grant of common-law
    authority established in a Supreme Court case from 1931.                       See
    United States v. Benz, 
    282 U.S. 304
    , 306-07 (1931).
    On March 8, 2012, the judge conducted a supplemental plea
    colloquy. Sevilla objected, claiming that the initial deficiencies
    in his plea could only be corrected by conducting a completely new
    colloquy, not by simply undertaking to supplement the first.                   The
    district court disagreed, finding "no point in repeating" what had
    been said seven months before, in August 2011.               On March 13, 2012,
    the judge sentenced Sevilla again. This time, he imposed a term of
    345 months on Count 1 and sixty months on Count 2.                   Sevilla filed
    another notice of appeal, bringing his claims before our court.
    II. The Rule 11 Error and Its Impact
    Sorting   through   this    procedural       mess,    the   majority
    concludes, and I agree, that the court had no power under Rule
    35(a)     to   impose    either   the   second   or   the    third    sentence.32
    31
    Although "not unsympathetic to the significant time pressures
    felt by the district courts as they manage heavy dockets with
    limited resources," see United States v. Millán-Isaac, Nos. 12-
    1693, 12-1769, 
    2014 WL 1613683
    , at *13 (1st Cir. Apr. 18, 2014), I
    am significantly concerned that such repeated claims of mistake and
    omission would hamper any defendant's ability to thoroughly
    understand and respond to the sentence imposed.
    32
    For the sake of clarity, I refer to both the original oral
    iteration of Sevilla's sentence and its corrected written form as
    a single sentence, the first of three. As I note below, however,
    there are significant conflicts between these two versions of
    Sevilla's sentence that materially impact its legality.
    -37-
    Reasoning that Sevilla did not properly challenge the Rule 11 plea
    colloquy error either before the district court or on appeal,
    however, the majority reinstates Sevilla's first sentence.   In so
    doing, it strikes down a prison term of slightly under thirty-four
    years and puts, in its place, a term of life-plus-327-months.      I
    find that decision to be neither required by law nor supported by
    reason.
    A. Appellate Waiver
    The majority states that Sevilla "says little in his
    brief about the impact of Rule 11 errors in the initial colloquy."
    I disagree.   Sevilla's brief quite plainly makes this argument:
    Pursuant to this Court's opinion in [United
    States v. Ortiz-García, 
    665 F.3d 279
    , 287-89
    (1st Cir. 2011),] the District Court's failure
    to inform Sevilla-Oyola at the change of plea
    hearing that the maximum sentence for [count]
    two was life imprisonment instead of the 5
    years mentioned mandates setting aside the
    final judgment entered on 1/26/12, where a
    life sentence was imposed in count two. . . .
    The Change of Plea transcript does not inform
    him of a maximum time of life imprisonment and
    [it] is by no means clear he would have
    plead[ed] guilty under those circumstances.
    The case should be remanded for resentencing.
    (emphasis added)
    This passage -- appearing in the "argument" section of Sevilla's
    brief -- is also foreshadowed in his presentation of the facts.
    Therein, Sevilla states that the sentencing judge "failed to advise
    [Sevilla] that he faced a potential life sentence as to count two,
    -38-
    informing   him   only   [that]   'you    have   a    consecutive   term   of
    imprisonment of I think it's five years on account of firearms.'"
    It is true, of course, that arguments raised only in a
    perfunctory and undeveloped manner are deemed waived on appeal.
    United States v. Zannino, 
    895 F.2d 1
    , 17 (1st Cir. 1990).
    Sevilla's argument, however clearly falls outside the scope of our
    waiver doctrine.    Compare United States v. Salimonu, 
    182 F.3d 63
    ,
    74 n.10 (1st Cir. 1999) (deeming waived a claim made "without
    argument or citation to case law"), with United States v. Dunbar,
    
    553 F.3d 48
    , 63 n.4 (1st Cir. 2009) (finding that, even where a
    claim was not stated "artfully" it was not waived where the
    appellate brief identified relevant facts and cited relevant case
    law), and Holmes v. Spencer, 
    685 F.3d 51
    , 66 (1st Cir. 2012)
    (holding waiver inappropriate where an appellant's brief "reveals
    enough of the raw materials" underlying a claim so as to allow the
    court to have "no trouble reading" his argument).
    Sevilla has identified a specific error. See Fed. R.
    Crim. P. 11(b)(1) ("[T]he court must inform the defendant of, and
    determine that the defendant understands . . . any maximum possible
    penalty, including imprisonment, fine, and term of supervised
    release[.]").     He has provided on-point case law.             See Ortiz-
    
    García, 665 F.3d at 287-89
    .       He has assessed the identified error
    under the appropriate doctrinal test.                See   United States   v.
    Raineri, 
    42 F.3d 36
    , 41-42 (1st Cir. 1994) (considering whether
    -39-
    Rule 11 error influenced the defendant's decision to plead guilty).
    In sum, his presentation -- succinct though it may be -- is in no
    way grounds for waiver.   United States v. Sepúlveda-Contreras, 
    466 F.3d 166
    , 170 n.4 (1st Cir. 2006) ("This is not a situation where
    we are forced to piece together [the defendant's] argument for him,
    and we therefore find no waiver." (internal citation omitted)).
    In fact, the majority admits that Sevilla identified "an
    error and a possible argument."       Nonetheless, omitting mention of
    the fact that this argument was also undergirded by specific
    reference to case law, it goes on to baldly assert that Sevilla's
    claim was pleaded "in the most skeletal way, leaving the court to
    do counsel's work."     See 
    Zannino, 895 F.2d at 17
    .           Given that
    Sevilla has identified a factual error, highlighted governing
    precedent, and applied that law to the facts at hand, however, I
    fail to see what "work" counsel has left undone.           In light of the
    content of Sevilla's brief, the assertion that his claim has been
    waived is simply unsupported.         Cf. United States v. Watson, 
    695 F.3d 159
    , 166-67 (1st Cir. 2012) (waiving an argument presented
    only as "an oblique suggestion," absent any reference to applicable
    case law or a governing standard); DiMarco-Zappa v. Cabanillas, 
    238 F.3d 25
    , 34 (1st Cir. 2001) ("Simply noting an argument in passing
    without explanation is insufficient to avoid waiver.").
    If   our   standard   for    escaping   waiver    required   that
    arguments be pled to the highest degree of artfulness, or that they
    -40-
    be situated in the most persuasive and logical place within an
    appellant's brief, I might well find myself in agreement with the
    majority.   For good reason, however, that is not our rule.   As it
    stands, we require only that an argument be raised, and raised
    squarely.    See, e.g., 
    Sepúlveda-Contreras, 466 F.3d at 170
    n.4;
    
    Dunbar, 553 F.3d at 63
    n.4.   This is a requirement that Sevilla has
    more than met.
    The illogical nature of the majority's holding is made
    even more apparent when considered in context.      After all, what
    reasonable defendant would expend any more than a succinct portion
    of his or her brief arguing against a sentence which had already
    been vacated by the sentencing judge, and for which the government
    was not advocating?   See United States v. Ayala-Vázquez, Nos. 11-
    2347, 12-1540, 
    2014 WL 1810703
    , at *13 (1st Cir. May 2, 2014)
    (holding that a "perfunctory statement" was sufficient to avoid
    waiver where it served to put the court on notice of a clearly
    applicable argument).     That Sevilla had the foresight even to
    include this argument in his brief, perhaps to ward off just such
    an overly formalistic and strained reading as the majority now
    adopts, is in itself impressive.    Still, the majority now demands
    that he should have expended more of his appellate efforts tilting
    at windmills. I cannot agree that this claim was waived on appeal.
    -41-
    B. Plain-Error Review
    The majority continues on to say that, even if Sevilla's
    Rule 11 claim were not waived, it would still fall under plain-
    error review, because "Sevilla did not object on Rule 11 grounds
    during the initial colloquy or move to withdraw his plea in the
    district court."
    It is true that Sevilla did not object at his plea
    colloquy.33 However, Sevilla's February 22, 2012, motion explicitly
    put forth this error as grounds for withdrawing his plea. In fact,
    elsewhere in its opinion, when discussing Sevilla's motion, the
    majority acknowledges that fact.      Recognizing that a motion to
    withdraw was filed, the majority instead rests its forfeiture
    finding on the subsequent motion hearing, in which Sevilla stated
    that he did not "want to reopen the hearing."   A thorough review of
    that hearing's transcript, however, shows that Sevilla's preferred
    course was significantly less clear than the majority purports:
    [COUNSEL]: . . . he does not want to reopen
    the hearing and stands by all his arguments in
    the pleading filed today.
    THE COURT: He doesn't want to reopen the
    hearing?
    [COUNSEL]: Only because of all the arguments
    we've presented, that we understand that the
    33
    At Sevilla's January 25, 2012, sentencing hearing, the judge
    did not impose a life sentence on Count 2. Rather, this term was
    first imposed in writing on January 26, 2012. Therefore, Sevilla
    had no reasonable opportunity to discover and raise the Rule 11
    error during the sentencing hearing, prior to the sentence's
    imposition.
    -42-
    Rule 11 cannot be cured by Your Honor's Rule
    35(a) motion.
    THE COURT: A Rule 11 --
    [COUNSEL]: That would be a forfeiture --
    Read in context, Sevilla's statement was intended specifically to
    preserve on appeal the complaint that the sentencing judge was
    acting beyond his power -- a claim the majority has since deemed
    meritorious.      At the same time, however, Sevilla purported to
    "stand by all" of his arguments, including the request to withdraw
    his plea.
    Certainly, this portion of the record invites confusion.
    Its apparently contradictory statements, however, do not require
    that our court completely ignore the fact that Sevilla clearly and
    expressly motioned to withdraw his plea.            Cf. United States v.
    Isom, 
    85 F.3d 831
    , 833-39 (1st Cir. 1996) (considering on the
    merits a defendant's claim that he should have been able to
    withdraw his plea, notwithstanding the fact that the defendant
    orally vacillated between requesting the right to withdraw and
    stating an intent to stand by that plea). Moreover, when presented
    with Sevilla's motion, the sentencing judge -- who repeatedly
    proclaimed    that   he   retained   jurisdiction   over   the   issue34   --
    34
    When Sevilla queried whether the court's ability to withdraw
    the plea was impacted by a sentence already having been imposed,
    the sentencing judge responded "it doesn't matter."             That
    proclamation ignores the plain text of Federal Rule of Criminal
    Procedure 11(e), which allows district courts to withdraw pleas for
    "any fair and just reason" only before the sentence is imposed.
    Fed. R. Crim. P. 11(e). Thus, we might chalk this up as one more
    error on the growing list of the sentencing judge's missteps. It is
    -43-
    considered and agreed with Sevilla's argument.   That the district
    court attempted to effectuate the withdrawal of Sevilla's plea in
    a manner beyond its power is most certainly an error -– the court's
    own –- but it is not an error that, in my view, negates the fact
    that Sevilla clearly raised this claim, and it was squarely
    considered.   In fact, I can think of no better evidence that the
    Rule 11 claim was raised than that which is present here: the
    sentencing judge awarded the relief sought.   He withdrew the plea.
    At the risk of piling on, I note that even if this court
    blinded itself to the clear record evidence that Sevilla's claim
    was raised and considered, plain-error review would be wholly
    inappropriate. Forfeiture of claims, after all, is not intended to
    be a "technicality or a trap for the indolent."     Nat'l Assn. of
    Social Workers v. Harwood, 
    69 F.3d 622
    , 627 (1st Cir. 1995).    To
    the contrary, the doctrine is intended to protect key values of
    judicial economy and fairness, and our court has warned not to
    significantly less clear, however, that -- once considered --
    Sevilla's motion would consequently be subject only to plain-error
    review. The Supreme Court has explained that Rule 11(e) plays an
    important role in separating "meritorious second thoughts . . . and
    mere sour grapes over a sentence once pronounced." United States
    v. Vonn, 
    535 U.S. 55
    , 72 (2002) (discussing Rule 32(e), which was
    later moved to Rule 11(e)).     Vonn, however, dealt with a more
    typical case, in which the claim was first raised on appeal, and
    its holding was limited to those facts. See 
    id. at 71-74
    (holding
    that a claim brought only on direct appeal is subject to plain
    error review); see also United States v. Borrero-Acevedo, 
    533 F.3d 11
    , 15 (1st Cir. 2008) (reasoning that a Rule 11 issue raised for
    the first time on appeal was reviewed for plain error); United
    States v. Jiménez, 
    512 F.3d 1
    , 3 (1st Cir. 2007) (same).
    -44-
    prize consistency in its application over reason and equity.                 Id.;
    see also United States v. La Guardia, 
    902 F.2d 1010
    , 1013 (1st Cir.
    1990) ("When all is said and done, 'rules of practice and procedure
    are devised to promote the ends of justice, not to defeat them.'"
    (alteration and citation omitted)).
    Our precedent acknowledges that "[c]ontext is important,"
    United States v. Gallant, 
    306 F.3d 1181
    , 1187 (1st Cir. 2002), and
    that there are situations where "it simply would be unfair and
    unwise as a matter of policy to hold that [the defendant] forfeited
    the argument," 
    id. at 1189.
              This case, where the sentence was
    vacated below and no party argues for its imposition on appeal, is
    clearly one such situation.          After all, this is a far cry from a
    case   where   our   court    has    been    "deprived   .   .   .   of    useful
    factfinding," 
    Harwood, 69 F.3d at 627
    , or of "the district judge's
    insights into the point," Sandstrom v. ChemLawn Corp., 
    904 F.2d 83
    ,
    87 (1st Cir. 1990).       Rather, the record on the issue is fully
    developed, and the sentencing judge's view on the nature and effect
    of the error is more than clear.             Similarly, the government was
    clearly put on notice of this claim and had every opportunity to
    respond.   
    Harwood, 69 F.3d at 628
    ("The absence of unfairness has
    a   definite   bearing   on    a    decision   to   overlook     this     type   of
    procedural default.").        At the February 22, 2012, motion hearing,
    the sentencing judge specifically asked the government if it agreed
    that allowing Sevilla to withdraw his plea was necessary, and the
    -45-
    government answered affirmatively.             The government's appellate
    brief also never suggests either that Sevilla's sentence is still
    intact, or that it should be.
    Moreover, in imposing the sentence orally, the judge did
    not sentence Sevilla to life in prison on Count 2.              At best --
    adopting    the   sentencing    judge's    rather   strained   explanation
    wholesale   --    the   judge   imposed    a   general   sentence,   without
    apportionment between the counts.              This robbed Sevilla of a
    significant opportunity to uncover and object to the Rule 11 error
    prior to the final imposition of his sentence.           See United States
    v. Dominguez Benitez, 
    542 U.S. 74
    , 79 (2004) (applying plain-error
    review to a claim of Rule 11 error where no objection was made
    "[a]t the sentencing hearing"); United States v. Mateo, 179 F.
    App'x 64, 65 (1st Cir. 2008) ("[O]ur review is for plain error,
    unless Mateo was not afforded a sufficient opportunity to present
    to the district court the argument which forms the basis of this
    appeal." (citations omitted)); United States v. Cortés-Claudio, 
    312 F.3d 17
    , 24 (1st Cir. 2002) ("[A] post-sentence objection is not
    necessarily required to preserve the issue for appeal if the
    defendant could not reasonably have anticipated the issue would
    arise until after the court ruled."); see also United States v.
    Delgado-Hernández, 
    420 F.3d 16
    , 20 (1st Cir. 2005) (applying plain-
    error review where the defendant had "ample opportunity" to object
    prior to the sentence's imposition (quoting United States v.
    -46-
    Negrón-Narváez, 
    403 F.3d 33
    , 37 (1st Cir. 2005)).   There is simply
    no sense of fairness or equity in allowing one error by the
    sentencing judge to shield another error from our review.35   Even
    had Sevilla's claim not been clearly raised and treated, the facts
    here provide precisely the sort of "context" that counsels against
    the overly rigid application of plain-error review.   See 
    Gallant, 306 F.3d at 1187
    .
    Before the court below, Sevilla sought to withdraw his
    plea, the government did not object, and the sentencing judge
    awarded the relief sought. The plea was withdrawn and the sentence
    vacated.   To now hold that Sevilla never brought this claim to the
    35
    Were there any question that this sentence requires remand,
    I also note that where the oral and written sentences materially
    conflict, the oral generally controls.       See United States v.
    Meléndez-Santana, 
    353 F.3d 93
    , 100 (1st Cir. 2003), overruled, in
    part, on other grounds by United States v. Padilla, 
    415 F.3d 211
    (1st Cir. 2005).      Our court has previously held that some
    deviations in the terms of supervised release or restitution
    payments, where the defendant was notice of those terms, were not
    material. See United States v. Ortiz-Torres, 
    449 F.3d 61
    , 74 (1st
    Cir. 2006); United States v. Vega-Ortiz, 
    425 F.3d 20
    , 22 (1st Cir.
    2005); United States v. Ferrario-Pozzi, 
    368 F.3d 5
    , 9 (1st Cir.
    2004). We have never gone nearly so far, however, as to say that
    a significant redistribution between counts of imprisonment was not
    a conflict.     Here, viewing the sentencing judge's proffered
    explanation about apportionment with the incredulity I believe it
    is due, given the clarity of his oral statement, the judge changed
    the sentence on Count 1 from life to 327 months and on Count 2 from
    sixty months to life. In light of that clear conflict, it would be
    the oral sentence that binds Sevilla, and the oral sentence is
    clearly illegal as surpassing the stipulated and accepted statutory
    maximum for Count 1. See, e.g., Blakely v. Washington, 
    542 U.S. 296
    , 303-04 (2004).
    -47-
    court's attention is quite a bait and switch.         Plain-error review
    is simply inappropriate in this circumstance.
    C. Remand to the District Court
    There is little question that this Rule 11 error was not
    harmless, such that the sentence cannot stand, see Fed. R. Crim. P.
    11(h) ("A variance from the requirements of this rule is harmless
    error if it does not affect substantial rights."), and -- as
    expected in a case where the government agrees that the sentence
    should not be imposed -- the government makes no attempt to prove
    otherwise.     See United States v. Olano, 
    507 U.S. 725
    , 734 (1993)
    (stating that the burden of proving that an error was harmless is
    on the government).        Moreover it is the sentencing judge who is
    best positioned to assess what, if any, impact the Rule 11 error
    had on Sevilla's understanding of his plea.            See, e.g., United
    States v. Cotal-Crespo, 
    47 F.3d 1
    , 5 (1st Cir. 1995) (noting that
    Rule   11   requires   a   sentencing   judge   to   ascertain   that   the
    defendant's plea is "voluntary and intelligent" (internal quotation
    marks citation omitted)).       On February 22, 2012, the sentencing
    judge made clear that, "I have to set aside the plea, because the
    plea is invalid.       And if the plea is invalid, the sentence is
    invalid."     He went on to state that he was "correcting for clear
    error emanating from the defective plea colloquy," and that, in
    this case, "the consequences of an imperfect colloquy and the
    potential sentence are of real significance to the Defendant."
    -48-
    Thus, the harmfulness of this error is clear, and nothing gleaned
    from the appellate record shows otherwise.     Remand is necessary.
    III.   Parting Words
    Sevilla's   sentencing     was   fraught   with   mistakes,
    misstatements, and omissions on the part of the sentencing judge.
    The unique posture of this case, arising from a sentencing replete
    with errors of the court's own making, and concerning an error that
    no party seeks to defend, is well fit for a simple resolution:
    remand for a correction of the Rule 11 error and imposition of a
    new sentence.   Instead, the majority now sua sponte chooses to
    summarily impose the first sentence, which the district court judge
    himself determined to be erroneous and improper, and which no party
    has sought to defend on appeal.    In so doing, the majority -- from
    a cold appellate record, and in contravention of the intent and
    discretion of the sentencing judge -- has increased Sevilla's
    sentence from just under thirty-four years to life in prison. This
    life sentence is based in no small part upon uncharged conduct
    which the district court, in its discretion, ultimately deemed
    improper to consider in this case.
    In attempting to defend this resolution, the majority
    states that Sevilla was put on notice of the fact that, upon remand
    and resentencing, his ultimate sentence might be greater than the
    405 months on appeal.    That notice, however, never so much as
    hinted at the idea that our court might short-circuit the accepted
    -49-
    practice of remand, which would have provided Sevilla with a chance
    to be heard at a new sentencing hearing, and instead simply impose
    a sentence significantly higher than that from which he appealed.36
    From this result, a pyrrhic victory if there ever was
    one, I respectfully dissent.
    36
    I know of no other case -- and the majority cites to none --
    in which an appellate court undertook to put in place a higher
    sentence than that from which the defendant's appeal was taken.
    The unusualness of this situation is surely cold comfort to
    Sevilla, who (as the majority suggests) will undoubtedly "wish[] he
    had left well enough alone."      I hope, however, that it might
    mitigate the chilling effect of this result, such that future
    defendants are not made fearful of bringing even meritorious claims
    on appeal.    While the majority seems to chide Sevilla for not
    "quit[ting] while [he was] ahead," I see no humor or harm in a
    defendant attempting to bring to our court's attention a heavily
    flawed sentencing process. If Sevilla is seeking "another bite at
    the sentencing apple," our court would do well to recognize that
    this is because his first was so thoroughly rotten.
    -50-