Sotirion v. U.S.A

• Decision Date: 04 August 2010
• Docket Number: No. 08-2566.,08-2566.
• Citation: 617 F.3d 27
• Parties: Arthur SOTIRION, Petitioner, Appellant,v.UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

617 F.3d 27

Arthur SOTIRION, Petitioner, Appellant,v.UNITED STATES of America, Respondent, Appellee.

No. 08-2566.

United States Court of Appeals First Circuit.

Heard Feb. 2, 2010.

Decided Aug. 4, 2010.

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Thomas J. Butters, with whom Matthew D. Thompson and Butters Brazilian LLP were on brief, for appellant.

Steven H. Breslow, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney was on brief, for appellee.

Before LIPEZ, Circuit Judge, Souter, Associate Justice,^* and HOWARD, Circuit Judge.

LIPEZ, Circuit Judge.

Arthur Sotirion pled guilty to racketeering and tax offenses pursuant to a plea agreement that contained a waiver of his right to directly appeal and collaterally attack his conviction or sentence. He appeals from the district court's dismissal of his 28 U.S.C. § 2255 petition to vacate, set aside or correct his sentence, in which he claimed that the district court erred in calculating his advisory sentencing guidelines range. He contends that the appellate waiver ² in his plea agreement is inval id because the court failed to specifically apprise him of the waiver at his change-of-plea hearing as required by Federal Rule of Criminal Procedure 11(b)(1)(N), and therefore the waiver was not knowing and voluntary. He further contends that the waiver should not be enforced because such enforcement would constitute a miscarriage of justice. The government responds that Sotirion procedurally defaulted his challenge to the appellate waiver by not first raising it on direct appeal, and alternatively contends that Sotirion's appellate waiver is valid and enforceable.

Rejecting the government's procedural default argument, we nevertheless conclude that Sotirion has not demonstrated that his appellate waiver is invalid on the basis of a plain error challenge to the district court's compliance with Rule 11(b)(1)(N). We further conclude that despite the failure of this plain error challenge to the Rule 11 procedure, we retain the discretion to refuse to enforce the appellate waiver if such enforcement would work a miscarriage of justice see United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir.2001). However, Sotirion has not demonstrated that enforcement of the waiver would result in a miscarriage of justice in this case. Accordingly, we affirm.

I.

Because Sotirion's conviction and sentence followed the entry of a guilty plea, we draw the facts from the change-of-plea colloquy and the uncontested portions of the revised presentence investigation report. See United States v. Jimenez, 512 F.3d 1, 2 (1st Cir.2007).

Sotirion began working at the Springfield Housing Authority (SHA) in 1970 and served as the Assistant Executive Director of Operations for many years until his resignation in April 2003. In that position, he oversaw the operation and maintenance of SHA housing projects and played a critical role in the awarding of contracts. Together with Raymond Asselin, Sr., the Executive Director of the SHA, Sotirion orchestrated a massive scheme of bribery, embezzlement, and fraud. As of 1993, Sotirion and Asselin began to solicit and receive bribes from SHA contractors in exchange for awarding them contracts and other preferential treatment at SHA. Sotirion also embezzled money directly from SHA. Sotirion orchestrated this conspiracy over a ten-year period, managing at least a dozen corrupt contractors and SHA employees. In addition, he did not report the income received from these schemes on his federal income tax returns.

In January 2005, a grand jury returned a superseding indictment against Sotirion and twelve co-defendants, charging Sotirion with ninety-eight counts related to the corrupt operation of the SHA from 1988 until April 2003. Sotirion was charged with multiple counts of racketeering and conspiracy to commit racketeering, 18 U.S.C. § 1962(c), (d); bribery and conspiracy to commit bribery, 18 U.S.C. §§ 201, 371; conspiracy to commit theft against the government, 18 U.S.C. §§ 371, 641; mail and wire fraud and conspiracy to commit mail and wire fraud, 18 U.S.C. §§ 371, 1341, 1343, 1346; extortion, 18 U.S.C. § 1512; witness tampering, 18 U.S.C. § 1512; and filing false income tax returns, 26 U.S.C. § 7206(1).

Pursuant to a negotiated plea agreement, Sotirion pled guilty to three counts ³ and the government agreed to dismiss the remaining ninety-five counts against him. The plea agreement also substantially limited Sotirion's forfeiture and restitution obligations. The government agreed that all of Sotirion's forfeiture obligations would be discharged by Sotirion's forfeiture of specified properties, and that in lieu of forfeiture he could pay half the market value of these properties, which amounted to only $178,750.

The plea agreement contained a separate section titled “ Waiver of Rights to Appeal and to Bring Collateral Challenge ” that stated:

Defendant is aware that Defendant has the right to challenge his sentence and guilty plea on direct appeal. Defendant is also aware that Defendant may, in some circumstances, be able to argue that his plea should be set aside, or his sentence set aside or reduced, in a collateral challenge (such as pursuant to a motion under 28 U.S.C. § 2255).

In consideration of the concessions made by the U.S. Attorney in this agreement, Defendant knowingly and voluntarily waives his right to appeal or collaterally challenge:

(1) Defendant's guilty plea and any other aspect of Defendant's conviction, including, but not limited to, any rulings on pretrial suppression motions or any other pretrial dispositions of motions and other issues;

(2) The adoption by the District Court at sentencing of any of the positions found in Paragraph 3 which will be advocated by the U.S. Attorney with regard to offense conduct, adjustments and/or criminal history under the U.S. Sentencing Guidelines; and

(3) The imposition by the District Court of a sentence which does not exceed that being recommended by the U.S. Attorney, as set out in Paragraph 4 and, even if the Court rejects one or more positions advocated by the U.S. Attorney or Defendant with regard to the application of the U.S. Sentencing Guidelines.

Defendant's waiver of rights to appeal and to bring collateral challenges shall not apply to appeals or challenges based on new legal principles in First Circuit or Supreme Court cases decided after the date of this agreement which are held by the First Circuit to have retroactive effect.

Paragraph three of the plea agreement set forth the positions the government would take at sentencing: the government would argue for a base offense level of 28 for bribery resulting in government losses of between $1 million and $2.5 million under U.S.S.G. § 2C1.1(a)-(b) and § 2E1.1; would argue for certain adjustments in that offense level, including a two-level increase under U.S.S.G. § 3B1.3 because the offense involved an abuse of a position of trust; and would recommend an adjusted offense level of 33, for a sentencing range of 135-168 months. The plea agreement further stated that Sotirion could contest these calculations at sentencing. Paragraph four of the agreement stated that the government would recommend a term of incarceration within the sentencing range of 135-168 months.

At the change-of-plea hearing before a magistrate judge, the judge inquired into Sotirion's understanding of the plea agreement and the consequences of his plea. The judge called attention to the waiver provision, asking, “And do you understand that you are waiving your right to appeal this case except I guess if there are legal issues that arise subsequent hereto. Okay?” Sotirion responded, “Yes.” In addition, the magistrate judge confirmed with Sotirion that (1) he had had an opportunity to go over the plea agreement in detail, (2) he understood the terms of the plea agreement, (3) he understood that at sentencing the government would argue for a two-level increase for abuse of trust and would argue for a sentencing range of 135-168 months, (4) there were no aspects of the plea agreement that he did not understand or wanted to raise with the court, and (5) he had “gone over [the plea agreement] line by line” with counsel.

At sentencing, the court calculated an adjusted offense level of 30, based in part on the two-level increase for abuse of a position of trust. Although defense counsel successfully challenged several offense-level increases sought by the government,⁴ counsel did not object to the increase for abuse of trust. This adjusted offense level, combined with Sotirion's criminal history category of I, resulted in an advisory sentencing guidelines range of 97-121 months. The court sentenced Sotirion to 109 months of imprisonment, the middle of the guidelines range.⁵ At the close of the hearing, the court stated that Sotirion had “a right to appeal the sentence. Even though you pled guilty, that does not limit your right to appeal.”

In January 2008, Sotirion filed a § 2255 petition arguing that the increase for abuse of trust was not applicable to his offense under the sentencing guidelines. See U.S.S.G. § 2C1.1, cmt. 6 (stating that an increase for abuse of trust under § 3B1.3 does not apply to an offense level calculated under § 2C1.1). He contended that his sentence was therefore based on inaccurate information in violation of due process and was the result of ineffective assistance of counsel at sentencing. The district court dismissed the petition, noting that the government did not contest that a “technical error” had been made in the advisory guidelines calculation, but concluding that the appellate waiver was knowing and voluntary and its enforcement would not constitute a miscarriage of justice. This appeal followed.

II.

A. Procedural Default

The government first contends that Sotirion has procedurally defaulted his challenge to the validity of the appellate waiver by failing to raise it on direct review, and therefore he can obtain collateral...