U.S. v. Gil-Quezada, 05-1252.

• Decision Date: 14 April 2006
• Docket Number: No. 05-1252.,05-1252.
• Citation: 445 F.3d 33
• Parties: UNITED STATES of America, Appellee, v. Francisco Antonio GIL-QUEZADA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

445 F.3d 33

UNITED STATES of America, Appellee, v. Francisco Antonio GIL-QUEZADA, Defendant, Appellant.

No. 05-1252.

United States Court of Appeals, First Circuit.

Submitted January 24, 2006.

Decided April 14, 2006.

Guillermo A. Macari-Grillo on brief for appellant.

H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, on brief for appellee.

Before SELYA, LIPEZ and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Francisco Antonio Gil-Quezada (Gil) appeals from a judgment entered by the United States District Court for the District of Puerto Rico in this criminal case. The government asks us to dismiss the appeal because Gil, in a written plea agreement (the Agreement) that preceded his change of plea and ensuing sentence, explicitly waived any right of appeal. Gil's riposte is that the waiver was neither knowing nor voluntary and, thus, should not be enforced. Concluding, as we do, that the waiver is effective and that Gil's claims do not warrant an exception to its plain terms, we dismiss the appeal.

The basic facts are largely undisputed. On April 12, 2004, a federal grand jury in the District of Puerto Rico returned an indictment charging Gil and four other persons with knowingly conspiring to possess five or more kilograms of cocaine with intent to distribute. See 21 U.S.C. §§ 841(a)(1), 846. Gil originally maintained his innocence. On the day that his trial was to begin (September 27, 2004), however, he entered into the Agreement and proceeded to change his plea to a plea of guilty.

The Agreement described in some detail the crime of conviction, Gil's role in it, and the possible sentence. Gil and the government agreed that he would be held accountable for at least fifteen but not more than fifty kilograms of cocaine. That spread normally would have produced a base offense level of 34. See USSG § 2D1.1(c)(3). However, Gil negotiated a further reduction of the base offense level to 32, corresponding to five to fifteen kilograms of cocaine. See id. § 2D1.1(c)(4).¹

Gil and the government also agreed that Gil would be eligible for a reduction of the base offense level for acceptance of responsibility, see id. § 3E1.1(a), and could apply for a further reduction under the so-called "safety valve" provisions, see id. §§ 2D1.1(b)(7), 5C1.2(a). Were he to receive these reductions — a matter as to which the Agreement contained no guarantee — his adjusted offense level would drop to 28. When combined with his criminal history category, that would correspond to a guideline sentencing range (GSR) of 78-97 months. See id. ch. 5, pt. A (sentencing table). Should he fail to achieve these reductions, however, he would be subject to a sentence of no less than the statutory mandatory minimum of 120 months. See 21 U.S.C. § 841(b)(1)(A).

The Agreement contained the usual covenants. Among other things, Gil offered assurances that he was satisfied with his legal representation, that his counsel had rendered effective assistance, that his guilty plea was freely and voluntarily made, and that his change of plea was not induced by any threats or unrevealed promises. He also agreed to waive certain rights. In addition to a Blakely waiver, see Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),² he waived his right to confront the witnesses against him, to invoke the prophylaxis of the Fifth Amendment, and to a jury trial. Pertinently, he also waived his right to appeal. That waiver memorialized his agreement that, so long as the district court accepted the Agreement and sentenced him within the ambit of its terms and conditions, he "waive[d] and surrender[ed] his right to appeal the judgment and sentence in this case."

At the change-of-plea hearing, the district court conducted a thorough inquiry into Gil's understanding of the Agreement and the waivers contained therein. The court led Gil, step by step, through the Agreement and questioned him closely, through an interpreter, to ascertain whether he comprehended its scope and provisions. The court also queried Gil's counsel to ensure that he had discussed the Agreement thoroughly with Gil. When all was said and done, the court accepted the guilty plea and commissioned the preparation of a presentence investigation report.

On December 15, 2004, a probation officer interviewed Gil. During the interview, Gil intimated for the first time that his counsel had pressured him into pleading guilty. When Gil's attorney became aware of this allegation, he moved to withdraw and to postpone the sentencing hearing. The district court denied both motions.

The disposition hearing was held on January 21, 2005. Gil moved pro se for the appointment of new counsel, claiming that his attorney had (i) pressured him into accepting the Agreement; (ii) failed to discuss the case adequately with him; and (iii) advised him that, if he signed the Agreement, he would receive a 27-month incarcerative sentence. The district court questioned both Gil and his counsel about the allegations. The court determined that the lawyer had at all times acted professionally and had rendered competent services. Going a step further, the court specifically found that Gil had entered his guilty plea knowingly and voluntarily. The court thereupon denied Gil's motion.

Gil received a 78-month sentence — a sentence at the bottom of the GSR projected in the Agreement. He now appeals.

A waiver of appellate rights is valid if a "defendant enter[ed] into it knowingly and voluntarily." United States v. Teeter, 257 F.3d 14, 24 (1st Cir.2001). In Teeter, we established a three-pronged test for determining whether that standard has been met and, if so, whether the waiver should be enforced. Id. at 24-26. First, the written plea agreement must clearly set forth the scope and terms of the waiver. Id. at 24. Second, the district court, at the change-of-plea hearing, must call the waiver to the defendant's attention and question him closely in order to ensure that he has a full understanding of the waiver provisions and that he has knowingly and voluntarily elected to waive his right of appeal. Id.; see Fed.R.Crim.P. 11(b)(1)(N) (requiring such a colloquy). Third, even if the plea agreement and the change-of-plea colloquy pass muster, we will not enforce the waiver if doing so would work a miscarriage of justice. Teeter, 257 F.3d at 25.

In his brief, Gil concedes that the relevant language of the Agreement is clear and unambiguous. Moreover, our independent review confirms that the written waiver satisfies the first prong of the Teeter test. Gil's argument focuses on the second prong, claiming that certain of the district court's remarks misled him into believing that he was not relinquishing his appellate rights. We examine the particulars of this claim.

At the change-of-plea hearing, the district court provided Gil with an interpreter, who translated the proceedings into Spanish. With the help of the interpreter, the court reviewed the provisions of the Agreement, including the waiver of appellate rights, in order to ascertain that Gil fully understood what he had signed. Gil readily confirmed his understanding and appreciation of the waiver of appellate rights. The court also asked Gil's attorney (who was fluent in both Spanish and English) if he had read and explained the Agreement to Gil in the Spanish language. Counsel replied that he had reviewed the Agreement with Gil "page by page, paragraph by paragraph" and that Gil was "aware of the consequences of entering this plea."

Notwithstanding the clear terms of the Agreement and the judge's frank discussion of the document with him at the change-of-plea hearing, Gil contends that the judge made three remarks — two questions at the change-of-plea hearing and one statement at the disposition hearing — that misled him into believing that he had in fact preserved his right to appeal. We turn next to these remarks.

In this case, what the judge said at sentencing is irrelevant to our waiver inquiry. If Gil waived his appellate rights, he did so by signing the Agreement and demonstrating his understanding and appreciation of the waiver provision at the change-of-plea hearing. The judge's comments at the disposition hearing, nearly four months later, have no bearing on whether Gil knowingly and voluntarily waived his appellate rights when he entered the plea.³

The judge's questions at the change-of-plea hearing are, of course, a horse of a different hue. First, the judge asked Gil: "Do you understand that by entering into this plea agreement you may have waived or given up your right to appeal or collaterally attack all or part of the sentence?" Second, the judge asked Gil: "Do you also understand that under some circumstances you or the government may have the right to appeal any sentence that this court imposes?" Gil asseverates that these questions gave him the impression that the effect of the waiver was uncertain.

We examined a virtually identical scenario in United States v. De-La-Cruz Castro, 299 F.3d 5, 10-12 (1st Cir.2002). There, we found such questions not misleading because the court had otherwise confirmed that the defendant understood the import of the waiver provision. See id. at 11-12 (cautioning that the judge's statements should not be wrested from their contextual moorings). In view of the extensive questioning that occurred during the plea colloquy and the repeated assurances that Gil and his counsel gave to the sentencing judge, it is implausible to conclude that the challenged questions were misleading.

Here, moreover, the judge's questions incorporated substantially correct factual assumptions. The first question, which assumed as a fact that the defendant would be relinquishing his "right to appeal or collaterally...