United States v. Arroyo-Blas

Citation783 F.3d 361
Decision Date15 April 2015
Docket NumberNo. 13–1613.,13–1613.
PartiesUNITED STATES of America, Appellee, v. Miguelito ARROYO–BLAS, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Rick Nemcik–Cruz, for appellant.

John A. Matthews II, Assistant United States Attorney, with whom Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez–Vélez, United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

The ostrich's undeserved claim to fame is that it buries its head in the sand instead of facing danger.1 Parties to litigation sometimes act like this, too. Case in point is our appellant, Miguelito Arroyo–Blas (Arroyo–Blas), who by ignoring a plea agreement's clear waiver of appeal provision fares no better here than we imagine our proverbial ostrich does when confronted by a predator in the wild.

I. BACKGROUND

This case has its genesis in Arroyo–Blas's guilty plea (pursuant to a written Plea Agreement) to Count I of a four-count Indictment charging him and several others with various drug crimes. In entering his plea, Arroyo–Blas admitted that he was an organizer and leader of a drug conspiracy that imported five or more kilograms of cocaine into Puerto Rico from June 2007 to January 2010.

Center stage in this appeal is occupied by the Plea Agreement, not the facts of the offense. The Agreement was made pursuant to Federal Rules of Criminal Procedure 11(c)(1)(A) and (C). Because these rules loom large over what's to come, we set them out now.

Rule 11(c) provides, as important here, the following:

(1) In General. An attorney for the government and the defendant's attorney ... may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
(A) not bring, or will move to dismiss, other charges;
...
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

Fed.R.Crim.P. 11(c). “Such a vehicle—a so-called C-type plea agreement—allows the parties to bind the district court to a pre-agreed sentence if the court accepts the plea.” United States v. Rivera–Martínez, 665 F.3d 344, 345 (1st Cir.2011).

Arroyo–Blas's Plea Agreement stated that he would plead guilty to Count I and that the government would dismiss the remaining counts against him. He agreed to “accept[ ] responsibility for more than fifty (50) kilograms but less than one hundred fifty (150) kilograms of cocaine” for sentencing purposes. The parties applied the agreed-upon drug quantity to the United States Sentencing Guidelines (“Guidelines”) to come up with a suggested offense level and sentencing range. The parties' calculations factored in Arroyo–Blas's role as an organizer and leader in the conspiracy as an aggravating circumstance, and his acceptance of responsibility as a mitigating one. All told, the drug quantity and adjustments translated to a Total Offense Level of 35 and a sentencing range of 168–210 months, assuming that Arroyo–Blas would be in Criminal History Category I.2

After calculating the Guidelines range, the parties agree[d] on a C-type range of 180 to 204 months of imprisonment, where the defendant may argue for a sentence of 180 months of imprisonment and the Government may argue for a sentence of 204 months of imprisonment.”3 A separate section of the Plea Agreement indicated that [p]ursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure defendant understands that the parties have agreed to a specific sentence because all parties understand that it is the appropriate disposition of this case.” It further stated that [i]f the Court accepts this Plea Agreement, the Court is bound by the parties['] sentencing recommendation.”

The Plea Agreement also contained a waiver of appeal:

The defendant knowingly and voluntarily waives the right to appeal the judgment and sentence in this case, provided that the defendant is sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation of this PLEA AND FORFEITURE AGREEMENT, that is, with a sentence within the above-mentioned range of 180 to 204 months of imprisonment.

At the change of plea hearing before a magistrate judge, Arroyo–Blas answered with an unambiguous “Yes” when asked whether he understood that he was agreeing to waive his right to appeal should he receive a sentence in accordance with the “terms, conditions, and recommendations” set forth in the agreement. The magistrate judge recommended that Arroyo–Blas's plea pursuant to the Plea Agreement be accepted, which the district judge did.4

The Presentence Investigation Report (“PSR”), prepared after the district judge accepted Arroyo–Blas's guilty plea, set forth the probation department's view of how the Guidelines should apply. The PSR's calculations tracked those of the Plea Agreement with respect to the nature of the offense and applicable enhancements and adjustments. Unlike the Plea Agreement, the PSR went on to address Arroyo–Blas's criminal history, which included a conviction on a charge of failure to report monetary instruments. Thanks to this conviction, the PSR set Arroyo–Blas's Criminal History Category at II, which called for a Guidelines sentence between 188 and 235 months.

At sentencing, the district judge recognized right off the bat that Arroyo–Blas's “type-C plea ... allows for a sentence within that range of 180 to 204 months.” The judge expressed his understanding that he could “sentence [Arroyo–Blas] anywhere ... in between that range.” Defense counsel replied by saying, [w]e understand that, Your Honor.”

Defense counsel's main argument at sentencing—and one he continues to press on appeal—was that Arroyo–Blas's Criminal History Category should be I, not II. The district judge disagreed and decided “to consider that [Arroyo–Blas has] a criminal history category [of] II which doesn't alter in any way your plea agreement because the plea agreement allows for the Court to sentence him anywhere between 180 and 204” months. Thus, the district judge didn't consider the Criminal History Category's interaction with the Guidelines range—168–210 months with it set at I, and 188–235 months at II—to have any effect on the actual range of time to which Arroyo–Blas was exposed. Ultimately, after running through the facts of the offense and taking Arroyo–Blas's personal history and characteristics into account, the judge found “that a sentence at the lower end of the applicable guideline range” was appropriate, and imposed a 188–month sentence.

This appeal followed.

II. DISCUSSION

Arroyo–Blas wants to be able to tell us that the district judge erred in putting him in Criminal History Category II, which subjected him to a higher Guidelines range. He believes this error worked to his detriment, as by choosing 188 months, the district judge clearly applied the bottom of the 188–235–month guideline range.

Had he been put in Category I, Arroyo–Blas believes he would have received a shorter sentence.

The Plea Agreement's waiver of appeal, however, may bar his appeal in its entirety. Accordingly, we must first conduct a “threshold inquiry” to determine whether [Arroyo–Blas's] appeal falls within the scope of the waiver-of-appeal provision contained in his plea agreement.” United States v. Okoye, 731 F.3d 46, 49 (1st Cir.2013).

When considering the scope of a waiver of appeal, we interpret the parties' agreement under basic contract principles.” Id.; see also United States v. Ocasio–Cancel, 727 F.3d 85, 89 (1st Cir.2013) ( “Plea agreements should be given their plain meaning.”). Should we find any ambiguities in the waiver provision, we resolve them in favor of allowing the appeal to proceed. Okoye, 731 F.3d at 49. But, [i]f a plea agreement unambiguously resolves an issue, that usually ends the judicial inquiry.” United States v. Alegria, 192 F.3d 179, 183 (1st Cir.1999). And, as in contract law, we will not “conjur[e] up an ambiguity [in a plea agreement] where none legitimately exists.” United States v. Anderson, 921 F.2d 335, 338 (1st Cir.1990).

Despite the importance of the waiver of appeal issue, Arroyo–Blas's opening brief fails to address it in any meaningful way. Indeed, the only time it is mentioned is in his statement of subject matter and appellate jurisdiction. And this treatment is confined to just two sentences—one acknowledging the waiver's existence, and the second making the conclusory statement that the waiver does not “bar this appeal as the claimed errors are misapplication of the Sentencing Guidelines”—followed by a straight-up cite, with no explanation, to our opinion in United States v. McCoy, 508 F.3d 74, 78 (1st Cir.2007). He makes no other argument as to why the waiver of appeal should not result in dismissal of his appeal.

The government starts off its brief by telling us that we should enforce the waiver of appeal. First, it takes aim at Arroyo–Blas's briefing, saying that his argument about the waiver's enforceability is so “cursory” that it has been waived. The government then turns to the merits and explains why the waiver of appeal is enforceable. Implicit throughout its brief is the idea that the waiver applies because Arroyo–Blas's appeal falls within its scope.

Having reviewed the terms and scope of Arroyo–Blas's waiver of appeal ourselves, they could hardly be more clear. Arroyo–Blas unambiguously agreed to waive his appeal provided he was sentenced to prison for somewhere between 180 and 204 months. And that is exactly what happened. So it would appear that the plain language of...

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