UNITED STATES OF AMERICA, Appellee, v. ANIBAL ORSINI, a/k/a Ruben Guerrero, a/k/a Jay, a/k/a Jay South, Defendant, Appellant.
No. 17-2042
United States Court of Appeals For the First Circuit
October 26, 2018
Before Howard, Chief Judge, Selya and Thompson, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge]
Halsey B. Frank, United States Attorney, and Julia M. Lipez, Assistant United States Attorney, on brief for appellee.
The orderly administration of justice depends upon a network of rules. The waiver rule is an important component of this network, and we agree with the government that waiver principles are apposite here. Applying those principles, we discern no reason to allow the appellant to shed the consequences of his waiver as easily as an iguana sheds its skin. Because the appellant has waived his “carеer offender” argument and has made no showing sufficient to excuse that waiver, we affirm the challenged sentence.
I. BACKGROUND
We briefly rehearse the travel of the case. The appellant was arrested and indicted in the aftermath of a major drug-trafficking investigation spearheaded by federal authorities.
The appellant objected to the PSI Report, but his objections did not directly contest the career offender enhancement. Rather, they centered around his claim that a number of crimes attributed to him by the probation department (not including the putative predicate-offense convictions) were actually committed by another individual. Wiping away the fruits of this mistaken identity, the appellant argued, would reduce his criminal history score and, thus, reduce his criminal history category.
The probation department sustained this objection in part; it agreed that some of the reported offenses had been perpetrated by someоne else and should not be attributed to the
The appellant also objected to the total drug quantity and resulting base offense level, see
The district court held a conference on August 10, 2017, tо “find out what is in dispute before the [sentencing] hearing.” The court began by questioning the relevance of the appellant‘s remaining identity-based objections, pointing out that those objections, even if sustained, would not alter the appellant‘s criminal history category (which would, in any event, be a function of his career offender status).1 Defense counsel took no issue
The court proceeded to address the drug-quantity issue and the proposed enhancements. It noted, however, that even using a drug-quantity figure satisfactory to the appellant, his career offender status would yield a significant guideline sentencing range (188-235 months). For that reason, the court suggested that the parties eschew any further wrangling over either drug quantity or enhancements and simply stipulate to the 188-235 month range. The parties accepted the court‘s suggestion and, as a result, the government abandoned its pursuit not only of an increased drug quantity but also of the proposed enhancements — revisions that would have more than doubled the guideline sentencing range.
The record makes manifest that, by this time, the court had indicated that it planned to classify the appеllant as a career offender and the appellant had affirmed his career offender status. Consistent with this affirmation, the court repeatedly referred, during the pre-sentence conference, to the parties’ agreement with respect to career offender status and to the court‘s intention to sentence the appellant as a career offender. The appellant never demurred. To cinch matters, his counsel explicitly stated: “I should be clear on the record. Based on the current law . . . and
On October 16, 2017, the district court convened the disposition hearing. Without objection, the prosecutor submitted exhibits substantiating the predicate-offense convictions on which the appellant‘s career offender designation hinged. The prosecutor added that both sides “agree on the career offender guideline range” and that the remaining factual objections to the PSI Report need not be resolved. Defense counsel joined the chorus, responding “[t]hat is correct, [y]our [h]onor.” In addition, the appellant personally agreed that he was a career offender. Last but not least, the appellant‘s counsel straightforwardly told the court — immediately prior to the appellant‘s allocution — that “Mr. Orsini is clearly а career offender.”
The district court found the appellant to be a career offender and imposed a bottom-of-the-range term of immurement (188 months). This timely appeal ensued.
II. ANALYSIS
In this venue, the appellant is represented by new counsel. As framed, his appeal raises only a single issue. Despite his earlier acknowledgement that he should be sentenced as a career offender, the appellant assigns error to the district court‘s treatment of him as such.
Here, however, we need not set out on such a stroll. The appellant‘s claim of error does not get out of the starting
We have made it luminously clear that “[a] party waives a right when he intentionally relinquishes or abandons it.” United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). As a general rule, a waived claim is unreviewable and, thus, cannot be revisited on appeal. See id. Though the effects of a waiver are sometimes harsh, the costs are justified by the systemic benefits: the rule of waiver is critically important to the orderly administration of justice. Nor is waiver a quixotic procedural trick: the waiver rule is grounded in principles of “fairness, judicial economy, and practical wisdom.” Nat‘l Ass‘n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995).
Waivers allow trial courts to narrow the issues and concentrate scarce judicial resources on genuinely contested matters — and when a trial court makes a reasoned decision, it is unfаir to allow a party to subvert that decision by resurrecting a waived claim. See United States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011) (characterizing waivers as “undertakings [that] are critical in managing the business of courts“). Given the importance of waivers in the fabric of litigation, it is not surprising that appellate courts normally enforce waivers with “near-religious fervor.” Nat‘l Ass‘n of Soc. Workers, 69 F.3d at 627.
The doctrine of waiver fits this case like a glove. The record makes pellucid that the appellant‘s career offender status was referenced no fewer than ten times over the course of two sentencing hеarings. Throughout, the appellant‘s counsel repeatedly and unequivocally affirmed that the appellant should be sentenced as a career offender, and the appellant himself reprised this affirmation. Nor does the record leave any room for doubt that both the appellant and his counsel knew the significancе of the career offender provision in relation to his sentencing exposure.
In an effort to blunt the force of this reasoning, the appellant argues that his unresolved factual objections to the PSI Report were sufficient to preserve the claim he now advances. This argument is belied by his representation to the court below that those objections impacted only his criminal history score and not his career offender status. Indeed, when confirming to the district court that the appellant was “a career offender,” his
The appellant has a fallback position. He suggests that even if his late-blooming argument against career offender status was waived, that waiver ought to be excused. This suggestion lacks substance.
To be sure, the waiver rule may “admit[] of an occasional exception” in extraordinary circumstances. Nat‘l Ass‘n of Soc. Workers, 69 F.3d at 627. Such exceptions, though, are hen‘s-teeth rare: they are granted, in the appellate court‘s discretion, only sparingly, and when the “equities heavily preponderate in favor of such a step.” Id. In deciding whether an exception is warranted, we may consider factors “such as whether the inadequately preserved arguments are purely legal, are amenable to resolution without additional factfinding, are susceptible to resolution without causing undue prejudice, are highly convincing, are capable of repetition, and implicate matters of significant public concern.” Sindi v. El-Moslimany, 896 F.3d 1, 28 (1st Cir. 2018). We likewise may consider whether waiver of the claim below “yieldеd [a] tactical advantage to the defendant[].” Nat‘l Ass‘n of Soc. Workers, 69 F.3d at 628. So, too, we may consider whether an
Viewed against this backdrop, there is good reason to hold the appellant to the consequences of his waiver. His claim is dubious;2 it is focused on the idiosyncratic circumstances of his own situation; it implicates no matters of significant public concern; and it does not rest upon any intervening change in the law. Moreover, waiving a challenge to his career offender status provided the appellant with a substantial benefit at sentencing: it deterred the government from its quest for a much more onerous guideline sentencing range. Allowing the appellant to reverse his field and belatedly attack his career offender designation would unfairly prejudice the government. Where, as here, a party makes a strategic choice to relinquish a known claim in exchange for a perceived advantage and the trial court acts upon that waiver,
That ends this aspect of the matter. Concluding, as we do, that the equities preponderate heavily in favor of enforcing — not excusing — the waiver, we decline the appеllant‘s invitation to relieve him of the consequences of his own admissions.
III. CONCLUSION
We need go no further. Waived claims are unreviewable, see Rodriguez, 311 F.3d at 437, and the glove, fitting, must be worn. Accordingly, the appellant‘s sentence is
Affirmed.