UNITED STATES of America, Appellee,
v.
Alvin RÍOS-HERNÁNDEZ, Defendant, Appellant.
United States Court of Appeals, First Circuit.
*458 Amy R. Silverman, with whom Alan D. Rose and Rose, Chinitz & Rose, were on brief for appellant.
Cаrmen 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 cаreer 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 thе change-of-plea colloquy, the plea agreement and the uncontested portions of the presentence investigation report (the "PSI"). United States v. Madera-Ortiz,
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 *459 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 plеa 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 defеndant 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 wе'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 Officе 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 violencea 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 occurrеd, 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. *460 The following exchange took place during the sentencing hearing:
MS. MÁRQUEZ [for the government]: Your Honor, as far as thе Government goes, we agreed to recommend a sentence of . . . 25just at the offence level 25, but we didn't know what criminal history.
. . .
THE COURT: But what criminal historycan 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] wеnt 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 thе 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 оf 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 voluntаry.[1] On appeal, he seeks to challenge his classification as a career offender.
*461 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,
We must construe plea agreements and waiver-of-appeal provisions therein according to basic contract principles. United States v. Acosta-Roman,
We assume, without deciding, that the waiver of appellate rights would have been valid under Teeter, see
We find that Fernández-Cabrera controls in this case. There, we allowed the appeal to proceed despite the fact that the defendant signed a plea agreement with a waiver-of-appeal provision because the district court did not follow the parties' jоint sentencing recommendation. Id. The language of the waiver provision in Fernández-Cabrera was such that the waiver "[did] not attach unless the district court ha[d] `sentence[d] the defendant according to the sentencing recommendations contemplated [in the plea agreement].'" Id. Similarly, the language in Ríos-Hernández's plea agreement states that he waives and surrenders his right to appeal "if [the] Honorable Court . . . sentences him according to [the plea agreement's] terms, conditions and recommendations" (emphasis added). The sentencing recommendation in the Fernández-Cabrera plea agreement was "a joint entreaty that the district court sentence the defendant to a term of imprisonment `equal to the lower end of the applicable guidelines.'" Id. Likewise, the sentencing recommendation in the Ríоs-Hernández plea agreement was "that the defendant be sentenced to the lower end of the applicable guidelines." Finally, like in Fernández-Cabrera, where the district court sentenced the defendant to a mid-range sentence instead of the low-end *462 sentence recommended in the plea agreement, id., the district court sentenced Ríos-Hernández to a "middle range" sentence. Here, the condition upon which the waiver-of-appeаl dependedthat the defendant's sentence be in the lower end of the applicable guidelineswas not satisfied.
We acknowledge that there is a difference between the sentencing recommendation in Fernández-Cabrera and the recommendation in the present case. The parties in Fernández-Cabrera were sure that the guideline sentencing range was between thirty and thirty-seven months, id., whereas the parties in this case knew only that the offense level was twenty-five; therе was no stipulation as to the defendant's criminal history category. However, regardless of the applicable criminal history category, the court sentencing Ríos-Hernández recognized that "the stipulation was [that] he be sentenced to the lower end of the applicable guidelines[,]" noted that the applicable range was 110 to 137 months, and yet decided to "sentence [Ríos-Hernández] to 120 months, which is kind of a middle range." We conclude that "the waiver-of-appeal provision, as framed, was relegated to the scrap heap[,]" id., and we therefore proceed to the merits.
B. Career Offender Classification
Ríos-Hernández argues that the district court erred in classifying him as a career offender pursuant to section 4B1.1 of the Sentencing Guidelines because his conviction under Puerto Rico's Abuse by Threat statute, P.R. Laws Ann. tit. 8, § 633, is not a crime of violence. The government contends that the defendant waived this argument because it is different from the one he presented below. In the sentencing memorandum filed in the district court, Ríos-Hernández objected to the conclusion in the PSI that he was a career offender pursuant to U.S.S.G. § 4B1.1, arguing that "[t]he career offender guideline was not meant to be triggered by two рrior convictions involving consensual mutual combat between two individuals who chose this behavior as their lifestyle." Although this is a general objection to the defendant's classification as a career offender, it was not sufficient to give the district court notice of the specific issue raised herethat the court should have used the categorical approaсh to determine whether the defendant's conviction under the Abuse by Threat was a "crime of violence." See United States v. Ahrendt,
A party seeking to survive the onerous challenge of plain error review "must show: `(1) that an error occurred (2) which was clear and obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.'" Ahrendt,
Assuming, without deciding, that an error occurred, we find that Ríos-Hernández does not satisfy the second criterion of the plain error standard. The error, namely, the failure to use the categorical approach to determine whether the defendant's prior conviction under the Abuse by Threat statute was a "crime of violence," United States v. Almenas,
III. Conclusion
Because appellant fails to meet the onerous plain error standard of review, we affirm.
Affirmed.
NOTES
Notes
[*] The Hon. David H. Souter, Associate Justice (Ret.) of the Supremе Court of the United States, sitting by designation.
[1] The appellant claims that the following statements were misleading: 1) "you know if something extraordinary happens I will let him appeal"; and 2) "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."
[2] We therefore need not address whether the district court's statements at the change-of-plea hearing and the sentencing would have nullified the waiver.
[3] The categorical approach requires a court to compare the statutory definition of the relevant offense with the definition of "crime of violence," as stated in section 4B1.2 of the Sentencing Guidelines. Taylor v. United States,
[4] We note that we may examine an error that was not clear and obvious to the district court where the error becomes clear on appeal because settled law subsequently changes. United States v. Dancy,