FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
Jonathan G. Mermin and Preti, Flaherty, Beliveau &
Pachios, LLP, on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, on brief for appellee.
Howard, Chief Judge, Selya and Lipez, Circuit Judges.
Angel L. Villodas-Rosario appeals his sentence, claiming that
it is both procedurally and substantively unreasonable. He
asserts that he may bring these challenges because the
waiver-of-appeal provision in his plea agreement should not
be enforced under the tripartite framework of United
States v. Teeter, 257 F.3d 14 (1st Cir. 2001). The
government urges us to dismiss the appeal based on the
plain-error analysis set forth in United States v.
Borrero-Acevedo, 533 F.3d 11 (1st Cir. 2008).
competing arguments mirror the confusion in our precedent as
to the proper standard for evaluating the enforceability of
an appellate waiver. Although we explain this confusion
below, we ultimately conclude that, even under the more
defendant-friendly Teeter approach,
Villodas-Rosario's waiver of appeal must be enforced.
Accordingly, we dismiss his appeal.
pleaded guilty pursuant to a plea agreement to one count of
knowingly possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i). The plea agreement contained several key
provisions. First, the government agreed to dismiss a related
charge for possession of a machine gun, which carried a
mandatory minimum of 30 years' imprisonment. Second, the
parties agreed that the guideline sentence recommendation on
the remaining charge was 60 months, which was the statutory
mandatory minimum. Third, the agreement permitted the
government to recommend a sentence not to exceed 17 years of
imprisonment and Villodas-Rosario to advocate for a sentence
as low as 8 years of imprisonment. Finally, Villodas-Rosario
agreed "to waive and surrender his right to appeal the
judgment and sentence in this case if the Court accept[ed]
[the agreement] and sentence[d] him according to its terms,
conditions, and recommendations."
change-of-plea hearing, the district court explained to
Villodas-Rosario the rights that defendants waive by pleading
guilty. In the context of describing the rights of defendants
who are generally in Villodas-Rosario's position, the
You should know that sentences imposed in this court for this
kind of case can be appealed by both sides. You can appeal.
The government can appeal. Both sides can exercise the right
to appeal. Sometimes Plea Agreements require that a defendant
waive the right to appeal under some circumstances. Do you
court did not go beyond this general explanation to describe
Villodas-Rosario's specific appellate waiver provision or
to inquire into his understanding of the appellate rights he
was giving up by accepting the plea agreement. After
delivering the explanation, the court accepted
Villodas-Rosario's guilty plea.
to the plea hearing but prior to sentencing, Villodas-Rosario
became concerned about the affidavit of the sole police
officer who conducted surveillance in this case. For example,
the officer signed into the precinct to work on only one of
the three days on which she supposedly conducted
surveillance, and appellant claims that the log book records
for the vehicles allegedly used by the officer were
unavailable. Nevertheless, the officer's affidavit was
used to establish probable cause for the search warrant that
led to the discovery of weapons and drugs in
Villodas-Rosario's possession. Despite these concerns,
Villodas-Rosario never filed a motion challenging the
validity of the affidavit. Instead, defense counsel discussed
these concerns with the prosecutor out of
"courtesy." The prosecutor, in turn, agreed to
lower the government's sentencing recommendation to
"at least ten (10) years."
sentencing, the government recommended a sentence of "at
least 120 months," well below the maximum term set forth
in the plea agreement and consistent with the informally
promised recommendation. In fact, both the government and
defense counsel confirmed during the sentencing hearing that
the 120-month recommendation was "with the understanding
that if Your Honor sentences within the range of ...