United States v. O'farril-Lopez ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1081
UNITED STATES OF AMERICA,
Appellee,
v.
HÉCTOR JAVIER O'FARRILL-LÓPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and Katzmann,* Judge.
Eric A. Vos, Federal Public Defender, Vivianne Marrero-
Torres, Assistant Federal Public Defender, and Franco L. Pérez-
Redondo, Research & Writing Specialist, on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Antonio L. Pérez-Alonso, Assistant United States
Attorney, on brief for appellee.
* Of the United States Court of International Trade, sitting
by designation.
March 12, 2021
SELYA, Circuit Judge. A federal grand jury sitting in
the District of Puerto Rico returned an indictment charging
defendant-appellant Héctor Javier O'farrill-López (O'farrill) with
production of child pornography.1 See 18 U.S.C. § 2251(a), (e).
The charged offense was alleged to have taken place from in or
about 2016 through early July of 2017, and it is undisputed that
O'farrill was then serving a twelve-year term of probation imposed
by a local court for an unrelated crime.
O'farrill pleaded not guilty to the federal indictment,
and plea negotiations ensued. Those negotiations proved fruitful,
and the parties entered into a plea agreement (the Agreement).
Under the terms of the Agreement, the government agreed to dismiss
the indictment and instead file a one-count information (the
Information) charging O'farrill with the lesser offense of
possession of child pornography. See 18 U.S.C. § 2252A(a)(5)(B).
O'farrill, in turn, agreed to plead guilty to the Information.
The Agreement — which was binding upon the parties and,
if accepted, upon the district court, see Fed. R. Crim. P.
11(c)(1)(C) — contained a provision denominated "Specific Sentence
Recommendation." In relevant part, this provision stipulated
that, "in exchange for the defendant pleading guilty to COUNT ONE
The record contains differing spellings of O'farrill's name.
1
We treat as authoritative the spelling used both in the plea
agreement and in O'farrill's signature on that agreement. For
consistency, we employ that nomenclature throughout.
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of the Information, the parties agree to recommend a sentence of
seventy-eight (78) months of imprisonment and at least five years
of supervised release." The Agreement also contained a waiver-
of-appeal provision, stipulating that the "[d]efendant knowingly
and voluntarily agrees that, if the imprisonment sentence imposed
by the Court is seventy-eight (78) months, the defendant waives
the right to appeal any aspect of this case's judgment and
sentence, including but not limited to the term of imprisonment or
probation, restitution, fines, forfeiture, and the term and
conditions of supervised release."
In due course, the district court accepted the
Agreement. The government then filed the Information, and — after
a thorough plea colloquy — O'farrill pleaded guilty to it. This
colloquy included a discussion of the effect of the waiver-of-
appeal provision, as called for by Federal Rule of Criminal
Procedure 11(b)(1)(N). The court continued the matter for
sentencing and, on December 14, 2018, sentenced O'farrill to a
seventy-eight-month term of immurement,2 to be followed by five
years of supervised release. The court denied O'farrill's request
that the incarcerative portion of the sentence be ordered to run
concurrently with any period of incarceration that might
2 The seventy-eight-month sentence was not only the
incarcerative sentence specified in the Agreement but also fell at
the bottom of the applicable guideline sentencing range.
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thereafter be imposed by the Puerto Rico courts in consequence of
his violation of probation. Once sentence was imposed, the court
— on motion of the government — dismissed the original indictment.
This timely appeal followed. In it, O'farrill attempts
to challenge the district court's failure to run his sentence
concurrently with any sentence that might be imposed by the Puerto
Rico courts for the probation violation.
Our inquiry begins — and ends — with the waiver-of-
appeal provision. Two decades ago, we ruled "that plea-agreement
waivers of the right to appeal from imposed sentences are
presumptively valid (if knowing and voluntary)." United States v.
Teeter, 257 F.3d 14, 25 (1st Cir. 2001). Although O'farrill
effectively concedes that the waiver of appeal in this case was
knowing and voluntary, the proposition stated in Teeter has some
other limitations. See id. at 24-26. To begin, Teeter only
applies when a claim of error falls within the scope of the waiver.
See id. at 24. Another limitation is that such a waiver is "subject
to a general exception under which the court of appeals retains
inherent power to relieve the defendant of the waiver, albeit on
terms that are just to the government, where a miscarriage of
justice" would otherwise occur. Id. at 25-26. As we explain
below, O'farrill's claim of error is within the scope of the waiver
and enforcing the waiver does not result in a miscarriage of
justice.
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In the case at hand, O'farrill argues that Teeter does
not apply because his claim of error falls outside the scope of
the Agreement's waiver-of-appeal provision. He also argues that
even if Teeter applies, the appeal waiver should not be enforced
because enforcement would come within Teeter's miscarriage-of-
justice exception. It is to these arguments that we now turn.
We set the stage. Courts interpret plea agreements
according to traditional contract-law principles. See Garza v.
Idaho, 139 S. Ct. 738, 744 (2019); United States v. Almonte-Nuñez,
771 F.3d 84, 88 (1st Cir. 2014). A fundamental tenet of contract
law instructs that the unambiguous words of a contract should
ordinarily be given their plain meaning. See Smart v. Gillette
Co. Long-Term Disab. Plan, 70 F.3d 173, 178 (1st Cir. 1995). Thus,
when the relevant text of a plea agreement is unambiguous, "[p]lea
agreements should be given their plain meaning." United States v.
Ocasio-Cancel, 727 F.3d 85, 89 (1st Cir. 2013); accord United
States v. Murphy-Cordero, 715 F.3d 398, 400 (1st Cir. 2013). Put
another way, courts should not impose conditions on plea agreements
that go beyond those to which the parties have agreed. See United
States v. Benchimol, 471 U.S. 453, 455 (1985) (per curiam).
In the Agreement, O'farrill waived his right "to appeal
any aspect of [his] judgment and sentence" so long as "the
imprisonment sentence imposed by the Court is seventy-eight (78)
months." That was exactly the sentence that the district court
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imposed and, thus, the sole condition for the operation of the
waiver was fulfilled. No more was exigible to give force to the
waiver. See United States v. Santiago, 947 F.3d 1, 2 (1st Cir.
2020), cert. denied, 140 S. Ct. 2818 (2020).
O'farrill's counter-argument posits that the sole
condition of the waiver-of-appeal provision was not fulfilled
because the district court refused his request to order that the
sentence run concurrently with any sentence thereafter imposed by
the Puerto Rico courts for the probation violation. But a
straightforward reading of the appeal waiver demolishes
O'farrill's first argument and shows with conspicuous clarity that
his putative claim of error falls within the scope of the waiver.
A determination that a sentence should run concurrently with some
other sentence is surely "an[] aspect" of a sentence. See id.And as such, O'farrill's claim is foreclosed by the unvarnished
terms of the waiver-of-appeal provision itself.
To be sure, O'farrill tries to validate his counter-
argument by embracing two of our prior decisions. See United
States v. Santiago-Burgos, 750 F.3d 19, 22-25 (1st Cir. 2014);
United States v. Maldonado-Escarfullery, 689 F.3d 94, 97 n.2 (1st
Cir. 2012). Those decisions, however, are easily distinguishable:
in each instance, the nature of the waiver-triggering event and
the language of the waiver-of-appeal provision differed materially
from the language of those elements in the Agreement.
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To illustrate, in Santiago-Burgos, the plea agreement
did not focus simply on the length of the sentence but, rather,
specified that the triggering event for the waiver was the court
sentencing the defendant "according to [the plea agreement's]
terms, conditions and recommendations." 750 F.3d at 22. Because
the court ran the defendant's sentence consecutively to another
sentence, see id., and because the plea agreement's terms,
conditions, and recommendations did not mention the possibility of
a consecutive sentence, see id. at 23, the waiver was never
triggered. The same distinctions apply to the other case upon
which O'farrill relies. See Maldonado-Escarfullery, 689 F.3d at
97 n.2 (refusing to enforce appeal waiver based on essentially
same plea-agreement language as in Santiago-Burgos).
The more pertinent precedent is our decision in
Santiago. There, we enforced an appeal waiver, worded similarly
to the appeal waiver in this case, in circumstances in which the
district court imposed a sentence within the recommended range but
ordered it to run consecutively to another sentence. See Santiago,
947 F.3d at 1-2. Although neither the sentence-recommendation
provision nor the waiver-of-appeal provision said anything about
concurrency or consecutiveness, we enforced the waiver because the
sentence imposed coincided with the triggering event described in
the plain language of the sentence-recommendation provision — and
nothing more was required for the waiver to take effect. See id.
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at 2-3. Language tying the waiver's triggering event to the
"terms, conditions, and recommendations" limned in the plea
agreement was absent.
The case at hand fits seamlessly within the Santiago
mold. Here, the triggering event for the waiver was the imposition
of a seventy-eight-month sentence — precisely the sentence that
the district court imposed. And as in Santiago, language tying
the waiver's triggering event to the Agreement's "terms,
conditions, and recommendations" was absent.
O'farrill has another shot in his sling. He contends
that we should decline to enforce the waiver-of-appeal provision
because enforcement would result in a miscarriage of justice. The
premise on which this contention rests is unimpugnable: we long
have recognized a miscarriage-of-justice exception to the
enforcement of appeal waivers. See Teeter, 257 F.3d at 25-26.
Even so, the conclusion that O'farrill draws does not follow.
Enforcement of the appeal waiver in this case will not give rise
to a miscarriage of justice. We explain briefly.
When a party seeking to avoid an appeal waiver attempts
to invoke the miscarriage-of-justice exception, we inquire into
factors such as the clarity of the waiver, the gravity and
character of the precluded claim, the potential impact of the claim
on the defendant's situation, the government's interest in
enforcing the waiver according to its terms, and the extent to
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which the defendant can be said to have acquiesced in the result.
See id. at 26. Typically, "an otherwise lawful, within-guidelines
sentence . . . does not surmount the miscarriage-of-justice
hurdle." United States v. Cabrera-Rivera, 893 F.3d 14, 24 (1st
Cir. 2018). So, too, we have held that a sentencing court's
alleged misunderstanding of the preferred approach to determining
whether a sentence should be imposed consecutively or concurrently
with another sentence, without more, is a "garden-variety claim"
of error and does not "even closely approach[]" a miscarriage of
justice. United States v. Calderón-Pacheco, 564 F.3d 55, 59 (1st
Cir. 2009).
We discern no miscarriage of justice here. The waiver-
of-appeal provision, read in conjunction with the sentence-
recommendation provision, is luminously clear: so long as
O'farrill received a seventy-eight-month incarcerative sentence —
and he did — he relinquished any right to appeal "any aspect of
[his] judgment and sentence." In addition, the question that
O'farrill seeks to raise was entirely foreseeable: the
relationship between the sentence to be imposed in this case and
the sentence that might be imposed for the probation violation was
front and center in the district court. Both in his sentencing
memorandum and at the disposition hearing, O'farrill's counsel
requested the district court to run the federal sentence
concurrently with the anticipated probation-violation sentence.
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Had the issue of concurrency been sufficiently important to
O'farrill, he could either have negotiated concurrency as part of
the Agreement or conditioned his appeal waiver on it. Having done
neither, the character of the precluded claim undermines his
miscarriage-of-justice argument. Cf. United States v. Caramadre,
807 F.3d 359, 379 (1st Cir. 2015) (explaining that "a defendant's
dissatisfaction with his sentence, no matter how profound, cannot
constitute a basis for circumventing a waiver-of-appeal provision
to which he agreed").
We have warned that the miscarriage-of-justice exception
should be "applied sparingly and without undue generosity."
Teeter, 257 F.3d at 26. This case — in which O'farrill bargained
for and received a bottom-of-the-range sentence after pleading to
a substantially reduced charge — simply does not come within those
narrow confines. And this is especially true because the impact
of the challenged action on O'farrill is wholly conjectural: for
aught that appears, he has not yet received any sentence for the
probation violation. If and when one is handed down, the
sentencing court may very well elect to run it concurrently with
O'farrill's federal sentence.
O'farrill makes a related argument. He says that the
district court misapprehended its authority to impose a sentence
that would run concurrently with a sentence that had yet to be
imposed — a failing which, if it existed, might ground his
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miscarriage-of-justice argument. But we need not probe that point
too deeply because, whatever its relevance, this argument does not
withstand scrutiny.
O'farrill hinges this argument on the district court's
statement, when asked during sentencing by defense counsel to run
the federal sentence concurrently with any future sentence imposed
by the Puerto Rico courts for the probation violation, "[t]hat, I
cannot do." But the district court later clarified what it meant.
When defense counsel expressed concern that because the federal
sentence was silent on the subject, it would be deemed by the
Puerto Rico courts as intended to run consecutively, the district
court replied: "[y]es, you have concerns, but you don't give the
factual data for the Court to make a determination. So I haven't
said concurrent because there is nothing before the Court that the
Court could consider making its sentence concurrent to." We read
this exchange as implying that because the district court had not
been given sufficient information about the proceedings in the
Puerto Rico courts, it reasonably chose to leave the
consecutiveness/concurrency determination to those courts.
O'farrill's misapprehension-of-law argument therefore fails. See
United States v. Hahn, 359 F.3d 1315, 1329 (10th Cir. 2004) (en
banc) (per curiam) (holding that district court's alleged
misapprehension of law regarding lack of discretion to impose
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concurrent sentence did not trigger miscarriage-of-justice
exception).
We need go no further. Scripture teaches: seek and you
shall receive. Matthew 7:7. Having not sought to condition his
appeal waiver on his receipt of a concurrent sentence, O'farrill
can fairly be said to have acquiesced in the sentencing court's
refusal to order the sentence to run concurrently with the
anticipated probation-violation sentence. Put differently, he
appears to have gotten precisely what he bargained for.
Dismissed.
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