United States v. Ortiz-García

• Decision Date: 07 December 2011
• Docket Number: No. 10–2323.,10–2323.
• Citation: 665 F.3d 279
• Parties: UNITED STATES of America, Appellee, v. Samuel ORTIZ–GARCÍA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

665 F.3d 279

UNITED STATES of America, Appellee,

v.Samuel ORTIZ–GARCÍA, Defendant, Appellant.

No. 10–2323.

United States Court of Appeals, First Circuit.

Heard Nov. 8, 2011.Decided Dec. 7, 2011.

Rafael F. Castro Lang, by Appointment of the Court, for appellant.

Vernon B. Miles, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.

STAHL, Circuit Judge.

Defendant-appellant Samuel Ortiz–García (Ortiz) executed a plea agreement and entered a guilty plea without ever having been informed that the maximum penalty for the crime to which he was pleading guilty was life imprisonment. Ortiz ultimately received a sentence of 360 months, though his plea agreement recommended 120 months. Ortiz argues that the waiver of appeal provision in his plea agreement is unenforceable, that the district court violated Rule 11 by failing to inform him of the maximum penalty at his change-of-plea hearing, and that the court violated Rule 32 by failing to inquire at the sentencing hearing whether Ortiz had reviewed the pre-sentence investigation report with his attorney. Because we find that the waiver is unenforceable and that the Rule 11 violation constituted plain error, we vacate and remand for a new change-of-plea hearing.

I. Facts & Background

We recite the facts only as they are relevant to this appeal, drawing from the plea colloquy, the unchallenged portions of the pre-sentence investigation report (PSR), and the sentencing hearing transcript. United States v. Mercedes Mercedes, 428 F.3d 355, 357 (1st Cir.2005). On May 12, 2007, Ortiz and two other individuals attempted to steal the car of Gilberto Santiago–Quiñones (Santiago). Santiago and his passenger confronted the men, and an altercation ensued, in which Ortiz does not appear to have been involved. After the fight was over, Santiago and his passenger got back into the car to try to leave, but Ortiz's co-defendant, Agustín Rodríguez–Adorno (Rodríguez), blocked their way. An unidentified individual then said, “He's tough. Shoot him.” Ortiz approached the driver's side of the car and fired multiple shots into the car, killing Santiago.

A grand jury returned a four-count indictment, charging Ortiz, Rodríguez, and another individual with: (1) conspiring to commit a carjacking with intent to cause death or serious bodily harm, in violation of 18 U.S.C. §§ 371, 2119 (Count One); (2) aiding and abetting in a carjacking that resulted in a death, in violation of 18 U.S.C. § 2119(3) (Count Two); (3) aiding and abetting in the use, carriage, and discharge of a firearm in furtherance of, during, and in relation to the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count Three); and (4) aiding and abetting one another in causing the death of another person through the use of a firearm, in violation of 18 U.S.C. § 924(j) (Count Four).¹

On June 9, 2010, Ortiz entered into a plea agreement with the government, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (B). Under the terms of that agreement, Ortiz agreed to plead guilty to Count Three of the indictment: discharging a deadly weapon during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). In exchange, the government recommended a sentence of 120 months. As part of the plea agreement, Ortiz accepted the district court's “jurisdiction and authority to impose any sentence within the statutory maximum set forth for the offense.” If the district court chose to impose a sentence “up to the maximum established by statute,” Ortiz could not “for that reason alone, withdraw a guilty plea,” and would remain bound to fulfill all of the obligations of the plea agreement. Nowhere in the agreement, however, did the government include the maximum penalty under 18 U.S.C. § 924(c)(1)(A)(iii), which is life imprisonment. ² The “statutory penalties” section of the agreement simply stated that the crime was punishable “by imprisonment of not less than ten (10) years,” a fine not to exceed $250,000.00, or both, and a term of supervised release of no more than three years.

The agreement also contained a waiver of appeal section, which read as follows: “The defendant hereby agrees that if this Honorable Court accepts this agreement and sentences him according to its terms and conditions, defendant waives and surrenders his right to appeal the judgment and sentence in this case.”

At Ortiz's change-of-plea hearing on June 10, 2010, the district court informed Ortiz that the minimum statutory penalty for the offense charged in Count Three was “imprisonment of not less than ten years if the firearm is discharged,” but the court did not mention the maximum penalty. Ortiz did not object to this omission at the hearing. The district court did confirm Ortiz's understanding that the court could impose a sentence more or less severe than the one recommended in the agreement and that the court's sentencing calculation would depend in part on its review of the PSR. The court also informed Ortiz that, if the court accepted the plea agreement and sentenced Ortiz according to its terms, Ortiz would waive and surrender his right to appeal. A sentencing hearing was scheduled for September 16, 2010.

The government first referenced the maximum penalty of life imprisonment under 18 U.S.C. § 924(c)(1)(A)(iii) in an initial PSR filed on September 3, 2010 and an amended PSR filed on September 10, 2010. It is unclear, however, whether the government's belated attempt to notify Ortiz that he might receive a life sentence was successful. Because Ortiz did not receive the PSR at least 35 days before his sentencing hearing, as required by Federal Rule of Criminal Procedure 32(e)(2), Ortiz's counsel filed a motion to continue the hearing. In that motion, Ortiz's counsel stated that he “came to discuss [the PSR and amended PSR] with [his] client yesterday, September 13, 2010, barely three (3) days from the sentencing date.” Ortiz's counsel further stated that he would normally advise his client to waive the 35–day notice period required by Rule 32(e)(2), but due to the nature of the case and “the need to thoroughly study the reports and further discuss with [his] client the contents of these,” he was requesting a continuance of the sentencing date. The district court rescheduled the hearing for October 21, 2010.

Four things happened at the sentencing hearing that are important here. First, the district court failed to confirm whether Ortiz had in fact reviewed the PSR with his attorney. Second, the court informed Ortiz that the maximum sentence under 18 U.S.C. § 924(c)(1)(A)(iii) was life imprisonment. Third, the court imposed a sentence of 360 months, finding that the sentence to which the parties had agreed, 120 months, did not “reflect the seriousness and aggravated nature of the offense.” Fourth, after informing Ortiz that he had waived his “right to appeal substantive issues regarding the conviction and sentence,” the district court went on to say, “I must tell you, Mr. Ortiz, that because the Court has not sentenced you according to the terms and conditions of the Plea Agreement, you do have the right to appeal.” Ortiz did not object to the court's failure to inquire about the PSR, nor did he ask that his plea be vacated once the court informed him of the maximum penalty.

Ortiz's co-defendant, Rodríguez, elected to go to trial. Rodríguez argued that Santiago's death had been the result of a street fight, not an attempted carjacking. On June 30, 2010, a jury convicted Rodríguez of Counts One and Two but acquitted him as to Counts Three and Four. Rodríguez received a sentence of 180 months' imprisonment.

II. Discussion

A. The Waiver of Appeal

We begin by addressing the waiver of appeal that Ortiz executed as part of his plea agreement, which, if enforceable, would preclude our consideration of the alleged Rule 11 and Rule 32 violations.

A waiver of appeal is enforceable “if it is valid and the defendant's claim lies within its scope.” United States v. Padilla–Colón, 578 F.3d 23, 28 (1st Cir.2009). For a waiver to be valid, the defendant must have entered into it knowingly and voluntarily. United States v. Teeter, 257 F.3d 14, 24–25 (1st Cir.2001). To determine whether a defendant's claim falls within the scope of an otherwise valid waiver, we examine what the parties agreed to, interpreting the agreement under basic contract principles. United States v. Acosta–Roman, 549 F.3d 1, 3 (1st Cir.2008). We construe any ambiguities in the waiver of appeal provision in favor of allowing the appeal to proceed. United States v. Fernández–Cabrera, 625 F.3d 48, 51 (1st Cir.2010).³

In this case, Ortiz agreed to waive his right to appeal the district court's judgment and sentence if the court: (1) accepted the agreement; and (2) sentenced Ortiz according to the agreement's terms and conditions. Those terms and conditions included a recommended sentence of 120 months and a provision confirming that the district court had sound discretion to impose “any sentence within the statutory maximum set for the offense to which the defendant pleads guilty.” Nowhere in the agreement, however, did the government specify the maximum penalty, which was life imprisonment. The agreement merely listed the statutory minimum of “imprisonment of not less than ten (10) years.”

The government argues that Ortiz's waiver of appeal is enforceable because the district court, at the change-of-plea hearing, ensured that Ortiz had knowingly and voluntarily entered into the waiver and then accepted Ortiz's plea of guilty, which the government equates with having accepted the plea agreement itself. The government further contends that Ortiz's 360–month sentence falls within the scope of what Ortiz...