U.S. v. Liriano-Blanco

• Decision Date: 11 December 2007
• Docket Number: Docket No. 06-2919-cr.
• Parties: UNITED STATES of America, Appellee, v. Ariel LIRIANO-BLANCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

510 F.3d 168

UNITED STATES of America, Appellee, v. Ariel LIRIANO-BLANCO, Defendant-Appellant.

Docket No. 06-2919-cr.

United States Court of Appeals, Second Circuit.

Argued: September 5, 2007.

Decided: December 11, 2007.

Craig M. Crist, Dreyer Boyajian LLP, Albany, NY, for Defendant-Appellant.

Brenda K. Sannes, Assistant United States Attorney (Edward P. Grogan, Assistant United States Attorney, of counsel), for Glenn T. Suddaby, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

Before: WALKER, CALABRESI, and SACK, Circuit Judges.

SACK, Circuit Judge:

On its face, this appeal raises the question of the authority of a district court to sentence a defendant below the range provided by the United States Sentencing Guidelines (the "Guidelines") when so-called "fast-track" downward departures are not available in the district. We cannot, however, reach the substance of this issue, because, we conclude, the waiver of appeal included in the plea agreement of the defendant, Ariel Liriano-Blanco, is effective and bars us from doing so. Nevertheless, because the district court appears to have determined the sentence based, in part, on its misimpression, uncorrected by the government, that he could appeal his sentence to us, and because that misimpression may have affected the severity of the sentence that the court imposed, we remand to the district court to provide it with an opportunity to reconsider.

BACKGROUND

On December 16, 2005, Liriano-Blanco entered this country illegally by walking from Canada to the United States at an unauthorized border crossing at or near Champlain, New York. His movements were detected by an intrusion device, which notified the United States Border Patrol. A member of the Border Patrol effected Liriano-Blanco's arrest.

On December 22, 2005, Liriano-Blanco was indicted in the United States District Court for the Northern District of New York on one count of unlawfully attempting to re-enter the United States after being previously removed from the country following his conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). On February 6, 2006, Liriano-Blanco entered into a plea agreement with the government. In it, he agreed, inter alia, to plead guilty to various charges against him and to waive the right to appeal any sentence of sixty months or less.

On the same day, the district court (Thomas J. McAvoy, Judge) held a video-conference plea hearing.¹ During the plea colloquy, the court specifically addressed the appeal waiver contained in the plea agreement, asking whether Liriano-Blanco agreed to give up the right of appeal for any sentence of 60 months or less, whether he did so voluntarily, and whether he understood the waiver when he agreed to it. Liriano-Blanco answered "yes" to each of these questions. Tr. of Plea Hearing, Feb. 6, 2006, at 15-17. The court then accepted Liriano-Blanco's guilty plea.

The Fast-Track Program

Underlying the sentencing issues the district court then faced was the existence of the "early disposition," or "fast-track," federal sentencing program. The program has existed since 2003 when Congress "instructed the United States Sentencing Commission to issue a policy statement authorizing a downward departure pursuant to an early disposition program authorized by the Attorney General." United States v. Mejia, 461 F.3d 158, 160 (2d Cir.2006) (citations and internal quotation marks omitted).

As directed by Congress, the Sentencing Commission adopted U.S.S.G. § 5K3.1 . . . which provides that, "[u]pon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides.

Id. at 161 (emphasis added). At last count, the fast-track program was in force in thirteen of the ninety-four federal districts: Arizona; California (Central, Southern, Eastern, and Northern districts); Idaho; Nebraska; New Mexico; North Dakota; Oregon; Texas (Southern and Western districts); and the Western District of Washington. Id. The fast-track program is not in effect in the Northern District of New York.

Sentencing of Liriano-Blanco

The parties and the probation office made written submissions to the district court with regard to Liriano-Blanco's sentencing. The Probation Office calculated the Guidelines range to be 57 to 71 months, based upon an offense level of 8, under U.S.S.G. § 2L1.2(a), a 16 level enhancement under § U.S.S.G. § 2L1.2(b)(1)(A)(I) based upon Liriano-Blanco's prior felony conviction, and a criminal history category of IV. Liriano-Blanco argued, however, that a non-Guidelines sentence was available and should be imposed "to avoid the disparity caused by the existence of fast-track programs in other districts." Def.'s Sentencing Mem., dated April 26, 2005[sic], at Point II.A.

On May 8, 2006, some three months after Liriano-Blanco's plea hearing, the district court conducted a brief sentencing hearing. The court commented generally on non-Guidelines sentencing in the district courts in illegal-reentry cases. The court concluded:

[I]nstead of sentencing you today, we're gonna look into those things, we're gonna examine the new case law, I'm gonna take under advisement the things I'm telling you about today and then, fairly quickly, hopefully within a couple weeks, we'll bring you back and I'll hear arguments and I'll sentence [you].

Tr. of Sentencing Hearing, May 8, 2006, at 6. The court made no mention of the possibility of an appeal or of the appeal waiver that was in force.

The sentencing hearing was reconvened on June 13, 2006. At the outset, the district court said:

No matter which way I go in this case, . . . I am gonna offer the other side a certificate of appealability, so I will immediately sign it. . . .[²] I would like to see what the Second Circuit says about it. I know what other courts and other Circuits say, but I would like guidance from a non-Fast Track circuit.

Tr. of Sentencing Hearing, June 13, 2006, at 9.

The court then entertained argument from both sides. Most of the discussion was about the disparity between the Guidelines sentence for Liriano-Blanco and the lower Guidelines sentence that would have been available to him had he crossed the border into one of the fast-track jurisdictions instead of the Northern District of New York.

Toward the end of the proceeding, the court expanded on its introductory remarks about sentencing disparities and the fast-track program.

Now, if I thought I could follow my own individual predilections, if I could follow my emotions and my heart, I would go down four levels and say I'm gonna sentence him there. But I don't think I can do that. . . . That's what I did [when I sat by designation] in Laredo, [Texas,] on two separate occasions, and in Midland, [Texas,] because they have the Fast Track Program.

Here, we don't have it. It does cause disparity, but I think it is important that Congress did incorporate that into The [PROTECT] Act, and I think the First Circuit made that call and was persuaded by that precedent. I am persuaded by the way they arrived at that.

Id. at 22-23. The district court then found Liriano-Blanco's offense level to be 21, and granted a departure from the recommended criminal history level of IV to a category III. The court calculated the resulting range to be 46 to 57 months and sentenced Liriano-Blanco to a term of 46 months.

Shortly thereafter, the district court returned to the issue of a possible appeal. "Hopefully, maybe, the Second Circuit may disagree with me and be able to give a lesser sentence when they send it back, but I don't know." Id. at 26-27. "Both you [referring to Liriano-Blanco] and the Government have the right to appeal this sentence under certain circumstances. And the Court has already indicated it would issue, if applied for, a certificate of appealability." Id. at 28. The court told Liriano-Blanco, finally, that he was required "to file any appeal [he] . . . plan[ned] to take within 10 days of the date of th[e] sentence." Id.

In fact, of course, Liriano-Blanco had consented to an appeal waiver as part of his plea agreement. No one present corrected the district court's misimpression, despite the fact that the court referred to its expectation of an appeal repeatedly, and the possibility of an appeal appeared to be an integral part of the judge's reasoning in arriving at a sentencing decision.

Liriano-Blanco's Appeal

On June 20, 2006, Liriano-Blanco filed a notice of appeal. On October 6, 2006, after his efforts to consolidate the appeal with that of one José Duran-Ferreira — who had traveled into the United States, and was arrested, with Liriano-Blanco — had failed, he filed his brief.

In the interim, on August 22, 2006, we decided Mejia. We concluded: "We join other circuits in holding that a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable." Mejia, 461 F.3d at 164. We did not have before us in Mejia, and did not address, the question presented in Liriano-Blanco's case: whether the district court has the authority to impose a non-Guidelines sentence in response to the fast-track sentencing disparity if it deems such a reduced sentence to be warranted.

On October 13, 2006, the government moved to dismiss Liriano-Blanco's appeal on the ground that he had waived his right to appeal in the plea agreement. On December 22, 2006, a panel of this Court denied the motion. Our order reads:

The Government moves to dismiss defendant-appellant's case on the ground that Liriano-Blanco entered into a clear and enforceable appellate waiver, and that he knowingly and voluntarily acknowledged his waiver of his right to appeal. Upon due consideration, the Government's motion is DENIED. Liriano-Blanco argues...