U.S. v. RÍos–hernÁndez

• Decision Date: 02 June 2011
• Docket Number: No. 09–2545.,09–2545.
• Citation: 645 F.3d 456
• Parties: UNITED STATES of America, Appellee,v.Alvin RÍOS–HERNÁNDEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

645 F.3d 456

UNITED STATES of America, Appellee,

v.Alvin RÍOS–HERNÁNDEZ, Defendant, Appellant.

No. 09–2545.

United States Court of Appeals, First Circuit.

Heard Feb. 9, 2011.Decided June 2, 2011.

Amy R. Silverman, with whom Alan D. Rose and Rose, Chinitz & Rose, were on brief for appellant.Carmen M. Márquez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, Unites States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief for appellee.Before TORRUELLA, Circuit Judge, SOUTER,^* Associate Justice, and BOUDIN, Circuit Judge.TORRUELLA, Circuit Judge.

Defendant-appellant Alvin Ríos–Hernández entered into a plea agreement with the government and pled guilty to one count of taking, by force and “with the intent to cause death or serious bodily harm ... a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce” in violation of 18 U.S.C. § 2119. He now challenges (1) the validity of the waiver-of-appeal provision in the plea agreement, and (2) the enhanced sentence he received because he was designated as a career offender. Although we do not consider the appeal foreclosed by the waiver-of-appeal provision, we find that his appeal does not withstand the onerous burden of plain error review and we therefore affirm the district court's sentence.

I. Background

When considering a sentencing appeal following the entry of a guilty plea, we gather the facts from the change-of-plea colloquy, the plea agreement and the uncontested portions of the presentence investigation report (the “PSI”). United States v. Madera–Ortiz, 637 F.3d 26, 28–29 (1st Cir.2011); United States v. Fernández–Cabrera, 625 F.3d 48, 50 (1st Cir.2010); Sotirion v. United States, 617 F.3d 27, 30 (1st Cir.2010). On November 3, 2008, a man drove his 2005 white Toyota Echo to the beach in Aguadilla, Puerto Rico. Ríos–Hernández attacked the man with a knife, abandoned him at the scene, and took his car. The victim sustained serious bodily injuries. Ríos–Hernández later abandoned the car in Isabela, Puerto Rico.

The federal grand jury charged Ríos–Hernández with one count of taking, by force and with the intent to cause death or serious bodily harm, a motor vehicle that had been transported, shipped, or received in interstate or foreign commerce in violation of 18 U.S.C. § 2119. Ríos–Hernández and the government entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1). The agreement provided that Ríos–Hernández would plead guilty to the count charged in the indictment and that the parties would recommend that the court sentence him to the lower end of the applicable guideline range. The parties did not stipulate as to the defendant's criminal history category. The plea agreement did, however, outline his sentencing exposure and provide estimated guideline sentencing ranges for criminal categories one through six.

The plea agreement also contained a waiver-of-appeal provision which stated, “The defendant hereby agrees that if this Honorable Court accepts this Plea Agreement and sentences him according to its terms, conditions and recommendations, defendant waives and surrenders his right to appeal the judgement [sic] and sentence in this case.”

During the change-of-plea colloquy, which took place on June 12, 2009, the court addressed the defendant to ensure he understood that he was waiving certain rights due to his guilty plea. The court specifically questioned the defendant regarding the waiver-of-appeal provision in the plea agreement:

THE COURT: You could appeal a sentence imposed under the guidelines, but your Plea Agreement is going to contain a waiver of appeal clause. That means there will be no appeal in this case. Do you understand that?

THE DEFENDANT: Yes.

MR. GUZMÁN [Defense counsel]: Your Honor, just to be absolutely sure that we're straight, Your Honor, Paragraph 17 I think is the waiver of appeal, and we adhere to that as written in the Plea Agreement.

THE COURT: Absolutely, and you know if something extraordinary happens I will let him appeal.

MR. GUZMÁN: I understand, Your Honor.

THE COURT: Okay. If the sentence that you receive is more severe than what you expect, that by itself will not allow you to withdraw your plea. Is that clear?

THE DEFENDANT: Yes.

The United States Probation Office filed the PSI on October 14, 2009. The PSI classified Ríos–Hernández as a career offender pursuant to the U.S. Sentencing Guidelines (“Sentencing Guidelines”), U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.1 (2009), based on two prior felony convictions for crimes of violence—a violation of P.R. Laws Ann. tit. 8, § 633, the Abuse by Threat statute, for which he was arrested on November 25, 2004, and a violation of P.R. Laws Ann. tit. 8, § 631, the Abuse statute, for which he was arrested on September 28, 2006. In the sentencing memorandum that he submitted on October 19, 2009, Ríos–Hernández argued that he should not be classified as a career offender. Defense counsel argued that “even though Mr. Rios technically qualifies as a career offender, the circumstances herein were not those envisioned by that guideline section.... The career offender guideline was not meant to be triggered by two prior convictions involving consensual mutual combat between two individuals who chose this behavior as their lifestyle.” Ríos–Hernández's sentencing memorandum also explained that “[t]he relationship between [Ríos–Hernández] and his common law wife ... has been described as mutually combative. They were both using drugs and ... under the influence [when] they fought. When the fights occurred, his wife would report them to the police. He never did.”

The sentencing was held on October 20, 2009. Defense counsel objected again to Ríos–Hernández's classification as a career offender, making the same arguments that he made in the sentencing memorandum. The following exchange took place during the sentencing hearing:

MS. MÁRQUEZ [for the government]: Your Honor, as far as the Government goes, we agreed to recommend a sentence of ... 25—just at the offence level 25, but we didn't know what criminal history.

....

THE COURT: But what criminal history—can I see the Plea Agreement?

MR. GUZMÁN: Yes, Your Honor.

MS. MÁRQUEZ: Yes, Your Honor. There is no stipulation as to the Criminal History Category, Your Honor. Just level 25, lower end of the applicable guidelines.

THE COURT: You consider all the possibilities here, 25, and [the Criminal History Category] went from I to VI.

MS. MÁRQUEZ: Exactly, and no stipulation, Your Honor.

THE COURT: And the stipulation was that he be sentenced to the lower end of the applicable guidelines?

MS. MÁRQUEZ: Exactly.

....

THE COURT: I'm saying rather than using a VI and a 31, rather than using a BOL of 31 and a Criminal History Category of VI, use a 25 with a Criminal History Category of VI. That fits exactly within the Plea Agreement.

MS. MÁRQUEZ: Okay.

MR. GUZMÁN: Okay. I mean I'm saying okay like if I had a say in this. I understand what you're saying.

....

MS. MÁRQUEZ: Your Honor, just that we stand by the Plea Agreement, and we recommend the lower end of the applicable guideline.

....

THE COURT: ... I'd rather sentence him at the level contemplated by the parties in the Plea Agreement, which is a BOL of 25, Criminal History Category of VI. That gives us a Guideline Imprisonment Range of 110 to 137 months; a fine range of 10,000 to 100,000; and supervision of at least two to five.

....

THE COURT: ... And I will sentence him to 120 months, which is kind of a middle range; no fine; and five years of supervision under the standard conditions....

....

Even though he waives his right to appeal in this case, I am going to recognize his right to have the sentence reviewed by the Court of Appeals.

The defendant was classified as a career offender under U.S.S.G. § 4B1.1 because he had two predicate offenses. The district court entered judgment on October 20, 2009. The court sentenced the defendant to a term of one hundred and twenty months of imprisonment and five years of supervised release. Ríos–Hernández filed a notice of appeal on October 22, 2009.

II. Discussion

Ríos–Hernández argues that his waiver-of-appeal is invalid because the district court's statements at the change-of-plea hearing and at the sentencing were so misleading that his waiver-of-appeal was not knowing and voluntary. ¹ On appeal, he seeks to challenge his classification as a career offender.

A. Presentence Waiver of Appellate Rights

A criminal defendant may waive his right to appeal as long as his waiver is voluntary and made with knowledge of the consequences of the waiver. United States v. Teeter, 257 F.3d 14, 21, 24 (1st Cir.2001). In order to ensure that such waiver is knowing and voluntary, the Federal Rules of Criminal Procedure require that the court “inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.Crim.P. 11(b)(1)(N). To determine the validity of a waiver of rights, we focus on the plea agreement and the change-of-plea colloquy. Teeter, 257 F.3d at 24. In particular, we determine (1) whether the written plea agreement “contains a clear statement elucidating the waiver and delineating its scope”; (2) “whether the court's interrogation suffices to ensure that the defendant freely and intelligently agreed to waive [his] right to appeal [his] forthcoming sentence”; and (3) whether “denying a right of appeal would work a miscarriage of justice[.]” Id. at 24–25.

We must construe plea agreements and waiver-of-appeal provisions therein according to basic contract principles. United States v. Acosta–Roman, 549 F.3d 1, 3 (1st Cir.2008). Any ambiguities should be resolved in favor of allowing the appeal to proceed. Fernández–Ca...