U.S. v. Arevalo
| Decision Date | 21 December 2010 |
| Docket Number | Docket No. 09-0576-cr |
| Citation | 628 F.3d 93 |
| Parties | UNITED STATES of America, Appellee, v. Jose Lopez AREVALO, also known as Payaso, Javier Irheta, also known as Juan Campos, also known as Speedy, Hector Portillo, also known as Chucky, also known as Angel, Luis Bonilla, also known as Chofre, Luis Valle Blanco, also known as Anvil, Francisco Valle Blanco, also known as Warden Hunter, also known as Silent, Nelson Mauricio Portillo Alas, also known as Snack, Wilmer Vindell Betanco, also known as Daffy, also known as Nica, Victor Mejia, Defendants, Manuel Vigil, also known as Junior, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Jason A. Jones, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.
Laurie S. Hershey, Manhasset, NY, for Defendant-Appellant.
Before: JACOBS, Chief Judge, KEARSE and STRAUB, Circuit Judges.
Defendant-Appellant Manuel Vigil appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge ) convicting him, following a guilty plea, of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), and of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The government argues that Vigil's appeal should be dismissed on the ground that Vigil's waiver of the right to appeal his sentence forecloses his claims on appeal. Because we conclude that Vigil's claim of Federal Rule of Criminal Procedure 32 error and his claim based on the absence of a Spanish interpreter during a portion of his sentencing proceeding are foreclosed by Vigil's appeal waiver, we dismiss the appeal.
On March 14, 2008, Manuel Vigil was charged in a superseding indictment that alleged that Vigil, as a member of La MaraSalvatrucha, a gang also known as "MS-13," conspired to murder unspecified members of the Bloods gang. The indictment also charged two of Vigil's co-defendants, who were also alleged MS-13 members, with murdering Pashad Gray, a member of the Bloods gang, on or about December 24, 2006.
Vigil entered into a plea agreement with the government on May 8, 2008. The agreement stated that Vigil would plead guilty to counts seven and eight of the superseding indictment, which charged Vigil with conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), and with using a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The agreement included an appeal-waiver provision that provided that Vigil "agrees not to file an appeal or otherwise challenge ... the conviction or sentence in the event that the Court imposes a term of imprisonment of 195 months or below."
On May 8, 2008, Vigil pleaded guilty to counts seven and eight of the superseding indictment before a magistrate judge in the District Court. A Spanish interpreter was present for the entirety of the plea proceeding. Using the interpreter, Vigil confirmed that the plea agreement had been translated into Spanish and that he had carefully reviewed the agreement with his lawyer before signing it. Vigil also stated that he understood that he was waiving his right to appeal any sentence of 195 months' incarceration or below. During his plea allocution, Vigil testified that the factual basis for his guilty plea was that, sometime in the summer of 2006, he rode in a car with other MS-13 members, one of whom Vigil knew was carrying a gun, while looking for a member of the Bloods gang to kill. Vigil did not admit to actually killing a member of the Bloods gang, nor to killing Pashad Gray.
Vigil's presentence report, prepared on October 24, 2008, calculated Vigil's Federal Sentencing Guidelines range as 240 months. The report stated that Vigil fired a weapon during the conspiracy in question and that he also should be held accountable for the murder of Pashad Gray. Both Vigil and the government objected to the presentence report's Guidelines-range calculation. By letter dated February 4, 2009, the government informed the Court that the presentence report was "factually incorrect" because the government had no evidence either that Vigil, or anyone else, fired a weapon during the charged conspiracy, or that Vigil was in any way involved in Pashad Gray's murder. Accordingly, the government informed the Court that the government and Vigil agreed that the proper total Guidelines range was 157 to 181 months' incarceration.
Vigil was sentenced by the District Court on February 5, 2009. At the beginning of the sentencing proceeding, no Spanish interpreter was present. During this portion of the proceeding, the government again informed the District Court that both the government and Vigil disagreed with the presentence report's Guidelines-range calculation. The Court responded: The Court then discussed the proper Guidelines range with the parties and briefly discussed whether Vigil was seeking a below-Guidelines sentence. The Court then asked Vigil if he had read the presentence report and if he was ready for sentencing. Vigil responded "[y]es" to both questions, without the aid of an interpreter. At that point, Vigil's counsel told the Court that he believed that Vigil had used a Spanish interpreter in the past and stated that: "I think it might be a little bit better under the circumstances, this is a contested situation, it might be best if we had an interpreter." The District Court then pausedthe proceedings until a Spanish interpreter was present. After resuming, the Court repeated its two questions with the aid of the interpreter and ultimately sentenced Vigil to a total of 157 months' incarceration. The District Court made no determinations or findings of fact concerning the disputed portions of the presentence report and did not append any determinations to the presentence report, as required by Rule 32(i)(3)(B) and (C).
Vigil filed a pro se notice of appeal on February 10, 2009. On March 9, 2009, the government moved to dismiss Vigil's appeal in light of the appeal waiver contained in Vigil's plea agreement. In response, Vigil's trial counsel sought to be relieved by filing a brief purportedly in accordance with United States v. Gomez-Perez, 215 F.3d 315 (2d Cir.2000), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but we deemed that brief deficient. After Vigil's counsel failed to comply with our subsequent orders to cure the flawed Anders brief, we directed the Clerk to appoint new appellate counsel. We also denied the government's motion to dismiss without prejudice to renewal upon the appointment of new counsel. Vigil's new appellate counsel then filed a brief on appeal asking that the case be remanded either for resentencing or for the issuance of a new or amended presentence report.
On appeal, Vigil argues that the District Court violated Rule 32(i)(3) by not making a determination on the disputed portions of the presentence report. Further, he argues that his claim of Rule 32 error should not be foreclosed by his waiver of the right to appeal. Vigil also argues that he is entitled to resentencing because there was no Spanish interpreter present at the beginning of his sentencing proceeding. In response, the government argues that Vigil's appeal should be dismissed in light of Vigil's appeal waiver, or alternatively, that the District Court's judgment should be affirmed. Because we conclude that Vigil's appeal waiver forecloses his claim of Rule 32 error and his claim regarding the absence of a Spanish interpreter, we dismiss the appeal.
Generally, if a district court fails to strictly comply with Rule 32's requirements, the case must be remanded and resentencing may be required. See, e.g., United States v. Williamsburg Check Cashing Corp., 905 F.2d 25, 29 (2d Cir.1990); United States v. Bradley, 812 F.2d 774, 782 (2d Cir.), cert. denied, 484 U.S. 832, 108 S.Ct. 107, 98 L.Ed.2d 67 (1987).
In this case, the government does not contend that the District Court complied with Rule 32(i)(3) with regard to the disputed portions of the presentence report. Rather, the government argues that Vigil's appeal based on the alleged Rule 32 error is foreclosed by the appeal-waiver provision in Vigil's plea agreement. Vigil responds that his appeal waiver only prevents him from attacking the merits or length of his sentence, not from raising a claim that the District Court committed anerror in violation of Rule 32(i)(3). Alternatively, Vigil argues that the alleged errors contained in the presentence report will negatively affect the terms of his imprisonment and, therefore, the District Court's procedure constituted a violation of his due process rights. As a result, Vigil argues that we should at least remand this case for the limited purpose of the issuance of a new or amended presentence report.
We have not yet decided whether a defendant's waiver of the right to appeal a sentence includes a waiver of the right to appeal alleged Rule 32 errors. There are very few published decisions from our sister circuits addressing the issue. In United States v. Petty, 80 F.3d 1384, 1387-89 (9th Cir.1996), the Court of Appeals for the Ninth Circuit held that the defendant's appeal waiver did...
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...appeal waivers. We have long held that "[w]aivers of the right to appeal a sentence are presumptively enforceable." United States v. Arevalo , 628 F.3d 93, 98 (2d Cir. 2010). "[E]xceptions to the presumption of the enforceability of a waiver ... occupy a very circumscribed area of our juris......
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