U.S. v. Daniel

• Decision Date: 26 July 2011
• Docket Number: No. 10–1021.,10–1021.
• Citation: 647 F.3d 395
• Parties: UNITED STATES of America, Appellee,v.Jesús L. RODRÍGUEZ–MORALES a/k/a Daniel, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

647 F.3d 395

UNITED STATES of America, Appellee,

v.Jesús L. RODRÍGUEZ–MORALES a/k/a Daniel, Defendant, Appellant.

No. 10–1021.

United States Court of Appeals, First Circuit.

Heard March 8, 2011.Decided July 26, 2011.

José R. Olmo–Rodríguez, for appellant.Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.Before LYNCH, Chief Judge, TORRUELLA and SILER,^* Circuit Judges.TORRUELLA, Circuit Judge.

The appellant in this case argues that he should be allowed to withdraw his guilty plea, and that we should not enforce the waiver of appeal contained in his plea agreement. Finding his claims unconvincing, we now affirm his conviction and sentence.

I.

On March 30, 2009, an indictment was filed against defendant-appellant, Jesús L. Rodríguez–Morales (“Rodríguez”), charging him with two counts of unlawful possession with intent to transfer five or more identification documents, two counts of aggravated identity theft, and two counts of selling a social security card. Specifically, Rodríguez was accused of selling a total of eighty-six genuine social security cards and birth certificates to undercover agents during two separate incidents in August 2008.

On July 22, 2009, Rodríguez changed his plea to guilty on one count of aggravated identity theft, based on an agreement whereby the prosecution agreed to file a motion to dismiss the remaining counts of the indictment. The plea agreement stated that the guidelines sentence was the two-year term of imprisonment required by the statute, 18 U.S.C. § 1028A. The plea agreement contained a waiver-of-appeal provision which stated that if the court accepted the plea agreement and sentenced him according to its “terms, conditions, and recommendations,” then he would “waive[ ] and surrender[ ] his right to appeal the judgment and sentence in this case.”

Rodríguez subsequently filed four pro se motions raising various contentions regarding, inter alia, his attorney's performance, computation of the applicable guidelines range, and his lack of awareness of the consequences of pleading guilty to aggravated identity theft. The district court construed the first two filings as motions to withdraw his guilty plea, and denied them. The district court responded to the last two filings by explaining, via line order, that any issues would be discussed at the upcoming sentencing hearing.

A sentencing hearing was held on December 1, 2009. At sentencing, the prosecutor stated that “[h]ad this case gone to trial ... [Rodríguez] was looking at a statutory maximum of 44 years and a guideline sentence minimum of 107 months with a guideline sentence maximum of 131 months.” The court, as well as defense counsel, immediately concurred in the prosecutor's statement. Rodríguez subsequently addressed the court, and claimed that he should not have been charged with aggravated identity theft, as he had not sought to steal anyone's identity. The court responded by clarifying that the statute in question (18 U.S.C. § 1028A) did not require that a defendant seek to assume another's identity, but required only that “you transfer a means of identification of another person,” which, the court pointed out, Rodríguez had just conceded he did. No one, the court went on to note, was accusing Rodríguez of assuming someone else's identity; rather, he was accused of, and had pleaded guilty to, “using the documents that belonged to another person—or selling them to another person for $2,000.” The court then sentenced Rodríguez to two years' imprisonment, followed by a one-year term of supervised release. Rodríguez filed a notice of appeal the same day.¹

II.

A.

The parties dispute the applicable standard of review. The government argues it should be for abuse of discretion, whereas Rodríguez argues it should be de novo. As noted above, the district court construed two of Rodríguez's pro se filings, entered after the change-of-plea hearing but prior to sentencing, as motions to withdraw the guilty plea, and denied them as such. Generally speaking, appeals of a district court's decision to deny a motion to withdraw is reviewed for abuse of discretion.² See United States v. Rivera–Gonzalez, 626 F.3d 639, 643 (1st Cir.2010) (reviewing claim that a guilty plea was entered without an adequate understanding of its consequences for abuse of discretion); United States v. McMullin, 568 F.3d 1, 9 (1st Cir.2009); United States v. Castro–Gómez, 233 F.3d 684, 686 (1st Cir.2000); United States v. Santiago, 229 F.3d 313, 316 (1st Cir.2000) (noting, with respect to a claim that a guilty plea was not knowing and intelligent under Federal Rules of Criminal Procedure Rule 11, that review was for abuse of discretion).

However, as we have previously noted, other standards apply to certain sub-issues related to denials of motions to withdraw. “Abstract questions of law are reviewed de novo, findings of raw fact are tested for clear error, and law application and balancing judgments are usually reviewed for reasonableness.” United States v. Padilla–Galarza, 351 F.3d 594, 597 n. 3 (1st Cir.2003). Rodríguez argues that whether his plea was knowingly, intelligently and/or voluntarily tendered is a question of law subject to de novo review. See United States v. Ward, 518 F.3d 75, 80 (1st Cir.2008) (citing Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)); Wellman v. Maine, 962 F.2d 70, 72 (1st Cir.1992); see also Sotirion v. United States, 617 F.3d 27, 34 n. 6 (1st Cir.2010) (citing United States v. Goodson, 544 F.3d 529, 539 n. 9 (3d Cir.2008)) (noting, in the closely related context of a challenge to a waiver of appeal in a plea agreement, that a challenge premised on “the validity of the waiver itself, not the Rule 11 colloquy,” would be subject to de novo review).

We need not resolve this issue, as Rodríguez's claim fails under any of the applicable standards.

B.

The gist of Rodríguez's argument is that the prosecutor “drastically” overstated what his sentencing exposure would have been had he stood trial and been convicted on all counts. Appellant claims that had he stood trial and been convicted of all counts, he was looking at a guidelines range of twenty-four to thirty months. He argues that the prosecutor's inflated estimate of 107 to 131 months, agreed to by the court and by defense counsel, induced him to agree to the government's proffer. The proffer recommended a two-year term of imprisonment, which is what he ultimately received, once he decided to accept the government's terms and plead guilty. Rodríguez now claims that there was a strong probability that, had he known the true extent of his sentencing exposure, he would have rejected the government's proffer. As it is, he wound up accepting the government's proffer, and waiving many of his rights, in return for little or no discount from what he would have received had he gone to trial and been convicted on all counts.

The government appears to concede that the prosecutor overstated the defendant's potential exposure during the sentencing hearing. However, the government disputes that this overstatement rendered Rodríguez's plea involuntary or unintelligent, and argues that we should enforce the waiver-of-appeal provision of the plea bargain. The government also contests Rodríguez's calculation of twenty-four to thirty months as the correct guidelines range for conviction on all counts. While the government does not provide a specific range, it notes that his potential exposure on counts three and four alone was forty-eight months. Counts three and four alleged violations of § 1028A(a)(1), and this statute specifies that “no term of imprisonment imposed under this section shall run concurrently with any other term of imprisonment.” 18 U.S.C. § 1028A(b)(2). Therefore, sentences based on any of the other counts would have been imposed on top of any sentence for counts three and four.³

The Federal Rules of Criminal Procedure permit a defendant to withdraw a guilty plea after it has been tendered, but prior to sentencing, for a “fair and just reason.” Fed.R.Crim.P. 11(d)(2)(b). The relevant factors in considering whether a defendant has presented such a reason are “whether the plea was voluntary, intelligent, knowing and complied with Rule 11; the force of the reasons offered by the defendant; whether there is a serious claim of actual innocence; the timing of the motion; and any countervailing prejudice to the government if the defendant is allowed to withdraw his plea.” Padilla–Galarza, 351 F.3d at 597; see also Rivera–Gonzalez, 626 F.3d at 643.

The validity of a waiver-of-appeal provision in a plea bargain is reviewed under the three-part test set forth in United States v. Teeter, 257 F.3d 14, 24–25 (1st Cir.2001). The Teeter test asks whether “(1) the written plea agreement clearly delineates the scope of the waiver; (2) the district court inquired specifically at the plea hearing about any waiver of appellate rights; and (3) the denial of the right to appeal would not constitute a miscarriage of justice.” United States v. Edelen, 539 F.3d 83, 85 (1st Cir.2008); see also United States v. Isom, 580 F.3d 43, 50 (1st Cir.2009).

Although the standard for reviewing a denial of a motion to withdraw a guilty plea differs from the standard for reviewing the validity of a waiver-of-appeal provision, Rodríguez makes the same argument under these two standards. He argues that the prosecutor's misestimation of his probable guidelines range post-trial rendered his plea involuntary, unknowing, and unintelligent. Rodríguez argues that this both establishes a “fair and just” reason to allow withdrawal of his guilty plea, and establishes that there has been a miscarriage of justice under Teeter such that this appeal must be allowed.⁴ In addressing this argument, we need...