921 F.3d 306
1st Cir.2019Background
- Defendant Alex Colón‑Rosario pleaded guilty to one count of transporting a minor for sexual activity under a plea agreement that stipulated a total offense level (TOL) of 35 and that the government would recommend 168 months. Two other counts were dismissed.
- The plea agreement reserved criminal history and contained an appeal waiver effective only if the court sentenced within the guideline range based on TOL 35 or otherwise followed the agreement.
- The probation office prepared a PSI that calculated a TOL of 43 (adding several enhancements), producing a guideline range of life imprisonment; neither party objected to the PSI calculations.
- At sentencing the district court adopted the PSI’s higher calculations; defense asked for the 120‑month mandatory minimum, the government urged 168 months, and the court imposed 240 months.
- On appeal Colón‑Rosario argued, for the first time, that the prosecutor breached the plea agreement by (a) characterizing the plea as a "sweetheart deal" offered solely to spare the victim trial trauma, (b) emphasizing aggravating offense facts, and (c) saying there was no basis for a downward variance/departure.
- The First Circuit reviewed for plain error, concluded the appeal waiver did not bar review (sentence fell outside the agreement), found no plain error or breach, and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the appeal waiver bar the appeal? | Waiver in plea agreement should not preclude this appeal because circumstances allow challenge | Government: defendant forfeited by not addressing waiver in opening brief | Waiver did not apply because sentence was not within the agreement’s TOL‑35 guideline range; appeal proceeds |
| Did prosecutor breach plea agreement by calling it a "sweetheart deal" and saying it was to spare the victim? | Statement showed bad faith and induced plea; breached promise to recommend 168 months | Prosecutor corrected defense misstatement about rationale; had duty to provide accurate facts | No breach; prosecutor was entitled/dutied to correct misstatements and state rationale for plea offer |
| Did prosecutor breach by vigorously describing aggravating facts and arguing for 168 months? | Emphasized aggravating conduct contrary to spirit of agreement | Government obligated to present accurate offense characteristics and may advocate for its agreed sentence | No breach; prosecutor may fully advocate for the government’s recommended (stiffer) sentence and present facts truthfully |
| Did prosecutor undercut the 168‑month recommendation by saying no basis for variance/departure? | Statement suggested government opposed any variance, undermining its promise | Ambiguous remark clarified to refer to variance from plea‑agreement calculation; record as whole shows no breach | No plain error; ambiguity resolved in context to refer to plea‑agreement calculation |
Key Cases Cited
- Santobello v. New York, 404 U.S. 257 (plea promises must be fulfilled)
- United States v. Montañez‑Quiñones, 911 F.3d 59 (1st Cir.) (government held to meticulous standards in plea performance)
- United States v. Almonte‑Nuñez, 771 F.3d 84 (1st Cir.) (government must provide accurate sentencing information; consider record as whole)
- United States v. Miliano, 480 F.3d 605 (1st Cir.) (defendant’s burden to show waiver‑of‑appeal inapplicable when colorable question exists)
- United States v. Ocasio‑Cancel, 727 F.3d 85 (1st Cir.) (appeal waiver inapplicable when plea agreement language vitiates waiver)
- United States v. Saxena, 229 F.3d 1 (1st Cir.) (plain‑error review is exacting)