United States v. Figueroa-De-La-Ccruz ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1289
UNITED STATES,
Appellee,
v.
ISMAEL ESTEBAN FIGUEROA-DE-LA-CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges
Joseph C. Laws, Jr., Federal Public Defender, and Hector E.
Guzman-Silva, Assistant Federal Public Defender, on brief for
appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Assistant U.S. Attorney, and Thomas F. Klumper, Assistant U.S.
Attorney, on brief for appellee.
April 1, 2005
Per Curiam. In this sentencing appeal, the defendant,
Ismael Esteban Figueroa-De-La-Cruz ("Figueroa"), argues that the
district court erred in two ways: (1) in basing his sentence on
theft of more than $10,000 when his indictment charged him with
theft of only $10,000 and (2) in delegating authority to the
probation officer to order an unlimited number of drug tests during
his supervised release. Because we find that Figueroa knowingly
and voluntarily waived his right to appeal his sentence and that
the alleged sentencing errors do not constitute manifest injustice,
we affirm.
DISCUSSION
A. Waiver of Appeal
In his plea agreement, Figueroa agreed "that if [the
District] Court accepts this agreement and sentences defendant
according to its terms and conditions, defendant waives and
surrenders defendant's right to appeal the judgment and sentence in
this case." For such a presentence waiver of appellate rights to
be valid and enforceable, "the baseline . . . is that the defendant
enter[ed] into it knowingly and voluntarily." United States v.
Teeter, 257 F.3d 14, 24 (1st Cir. 2001). And "critically important
to a determination of knowledge and volition" are "the text of the
plea agreement and the content of the change-of-plea colloquy."
Id. Specifically, for such a waiver to be valid, the plea
agreement should "contain[] a clear statement elucidating the
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waiver and delineating its scope," id.; and, at the change-of-plea
hearing, "the court's interrogation [should] suffice to ensure that
the defendant freely and intelligently agreed to waive [the] right
to appeal [the] forthcoming sentence," id.; see also Fed. R. Crim.
P. 11(b)(1)(N) (requiring such a colloquy).
Here, the language of the waiver was clear. Indeed, as
we previously concluded with respect to an identically worded
waiver, "[t]here can be no doubt that the plea agreement contained
'a clear statement elucidating the waiver and delineating its
scope.'" United States v. De-La-Cruz Castro, 299 F.3d 5, 10 (1st
Cir. 2002) (quoting Teeter, 257 F.3d at 24). At the end of the
agreement, Figueroa certified that he "ha[d] read this agreement
and carefully reviewed every part of it with my attorney [and that
he] fully understand[s] this agreement and [he] voluntarily
agree[s] to it." His attorney signed a certification to the same
effect. "These desiderata furnish prima facie evidence of
[Figueroa's] knowledge and volition." Teeter, 257 F.3d at 26.
Further indicia of Figueroa's ability to understand the agreement
are his age (36), education (high school graduate and some
university studies), and experience (teaching a GED course).
The colloquy at Figueroa's plea hearing was also
sufficient to ensure that he understood his preexisting waiver of
appeal. After the court specifically pointed out the waiver
provision and confirmed that Figueroa's attorney had explained the
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provision to him and that Figueroa understood it, the court further
asked, "So you understand that by entering into this Plea Agreement
you will have waived or given up your right to appeal all or part
of the sentence as long as it complies with [the waiver provision]
of the Plea Agreement?"; and Figueroa responded, "Yes." In
assessing the sufficiency of a virtually identical exchange, we
readily rejected an argument that "[t]he plain language of the
district court's inquiry" was somehow misleading. De-La-Cruz
Castro, 299 F.3d at 11. The colloquy here was thus very different
from the one that we found deficient in Teeter, where the district
court neither directed defendant's attention to the waiver
provision of the plea agreement nor otherwise discussed that
provision but, instead, affirmatively sought and obtained
confirmation of defendant's understanding that she would have a
right to appeal any sentence the court imposed.
Thus, Figueroa's waiver of appeal was sufficiently
knowing and voluntary to satisfy the Teeter criteria. Although we
may nevertheless refuse to honor such a waiver where a miscarriage
of justice has occurred, Teeter, 257 F.3d at 26, that prerogative
is "applied sparingly and without undue generosity" and only "where
a miscarriage of justice occurred," id.B. Computing Sentence Based on Theft of More Than $10,000
Figueroa had ample notice, when he pleaded guilty, of the
amount of loss that the court would use to compute his sentence and
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of the resulting sentencing range, and he expressly stipulated to
the truth of the underlying facts. Given the lack of a factual
dispute as to the amount of loss, Figueroa was not prejudiced by
the indictment's reference to a theft of "$10,000," rather than the
higher amount that was ultimately used to calculate his sentence.
See United States v. Riggs, 347 F.3d 17, 20 (1st Cir. 2003), cert.
denied, 540 U.S. 1126 (2004); United States v. Duarte, 246 F.3d 56,
62 (1st Cir. 2001).
C. Delegation of Sentencing Authority
Figueroa's remaining claim of error is that the district
court impermissibly delegated to the probation officer the
responsibility for determining the maximum number of drug tests
that Figueroa is required to undergo during his supervised release.
Although the government confesses error on this point, we find no
error and therefore affirm the district court's sentence in this
respect. See United States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st
Cir. 2004) (stating that court of appeals need not accept agreed-
upon but mistaken legal propositions).
Although we have invalidated supervised release
conditions expressly delegating to the probation officer the
responsibility for determining the number of drug tests that a
defendant must undergo, United States v. Vega, 398 F.3d 149, 154
(1st Cir. 2005); United States v. Padilla, 393 F.3d 256, 258-59 (1st
Cir. 2004) (per curiam); United States v. Melendez-Santana, 353
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F.3d 93, 103 (1st Cir. 2003), the condition here does not embody any
such express delegation to the probation officer. Rather, the
district court's oral sentence required Figueroa to "submit to a
drug test within 15 days of release, and at least t[w]o periodic
tests thereafter." Its written sentence, which appears to be a
form, is virtually identical: "The defendant shall submit to one
drug test within 15 days of release from imprisonment and at least
two periodic drug tests thereafter." Neither the oral nor the
written sentence expressly delegates the determination of the
maximum number of tests to the probation officer.
Recently, we construed the very language used here as
judicially capping the number of drug tests at three, rather than
impermissibly delegating the determination of the maximum number of
tests to the probation officer. United States v. Lewandowski, 372
F.3d 470, 471 (1st Cir. 2004). We apply that same construction
here. As so construed, no improper delegation--and, therefore, no
manifest injustice--has occurred.
The sentence is affirmed. See Local Rule 27(c).
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