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United States v. Villodas-Rosario

United States Court of Appeals, First Circuit

August 20, 2018

ANGEL L. VILLODAS-ROSARIO, Defendant, Appellant.


          Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios, LLP, on brief for appellant.

          Rosa 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.

          Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.


         Appellant 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).

         These 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.


         Villodas-Rosario 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."

         At the 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 court stated:

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 understand that?

         The 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.

         Subsequent 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."

         At 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 ...

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