FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S.
C. LaRocque on brief for appellant.
Emilia Rodriguez-Velez, United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, and
Francisco A. Besosa-Martínez, Assistant United States
Attorney, on brief for appellee.
Kayatta, Circuit Judge, Souter, [*] Associate Justice, and Selya,
SOUTER, ASSOCIATE JUSTICE.
Kenny Pacheco pleaded guilty to conspiracy under the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1962(d), and to using or carrying a firearm during and
in relation to a drug trafficking crime, 18 U.S.C. §
924(c)(1)(A). The District Court imposed consecutive
sentences of 70 months in prison on the first offense and 60
months on the second. On appeal, Pacheco argues that his
firearms conviction and sentence duplicate his prior
conviction and sentence for a firearms offense under Puerto
Rico law, and thus violate the Fifth Amendment's
guarantee against double jeopardy.
conclude that the record as presented here does not permit
evaluation of Pacheco's double jeopardy claim, containing
as it does only the untranslated, Spanish-language judicial
documentation of the Puerto Rico firearms conviction. This is
inadequate by the terms of the Jones Act, 48 U.S.C. §
864, which prohibits federal courts from considering
untranslated documents. We accordingly dismiss the appeal,
but we do so without prejudice to Pacheco's right to
raise his double jeopardy claim on the basis of translated
records in future, collateral-review proceedings.
reaching the difficulty with the double jeopardy claim,
however, we must resolve a threshold issue: whether
Pacheco's plea agreement waiving his right to appeal in
some circumstances bars the claim on appeal. We conclude it
waiver of appellate rights is enforceable provided that,
among other things, the defendant "enter[ed] into the
waiver 'knowingly and voluntarily.'"
Sotirion v. United States, 617 F.3d 27, 33 (1st Cir.
2010) (quoting United States v. Teeter, 257 F.3d 14,
24 (1st Cir. 2001)). The "text of the written plea
agreement and the change-of-plea colloquy are of critical
importance" to the necessary enquiry, id.: a
waiver may be treated as knowing and voluntary if the written
plea agreement "clearly delineates the scope of the
waiver," United States v.
González-Colón, 582 F.3d 124, 127 (1st
Cir. 2009), and if the change-of-plea colloquy shows that
"the district court specifically inquired . . . about
the waiver" by "questioning of the defendant"
sufficient to establish "that the waiver was knowing and
voluntary," id., with respect to any
subsequently contested scope.
appeal waiver in Pacheco's plea agreement provided that
he "knowingly and voluntarily waives the right to appeal
the judgment and sentence in this case, provided that [he] is
sentenced in accordance with the terms and conditions set
forth in the Sentence Recommendation provisions of this Plea
Agreement." Plea Agreement ¶ 9. If our enquiry
ended there, the absence of any dispute that the total of
Pacheco's two sentences was "in accordance with
the[se] terms and conditions" would point to an
effective knowing and voluntary waiver of the right to appeal
the ensuing judgment and sentence actually imposed.
explained, however, reference to the text does not mark the
end of the enquiry, for we also look to the change-of-plea
colloquy. Teeter, 257 F.3d at 24. At Pacheco's
colloquy, the judge detailed the scope of Pacheco's
waiver: "There may be a waiver of appeal in your
particular Plea Agreements, but there is always the
possibility of the right to appeal if a sentence is imposed
illegally." Change-of-Plea Tr. 31-32.
stating that Pacheco could argue on appeal that his sentence
was "imposed illegally," the judge seemed to
"contradict the terms of the written waiver,"
Sotirion, 617 F.3d at 35, and he offered no
"correction" or modification of that statement
during the rest of the colloquy, Teeter, 257 F.3d at
27. To be sure, at a later point, the judge did tell Pacheco
that he would be "waiving [his] right to appeal" if
he was "sentenced according to the stipulations that
appear in the Plea Agreement." Change-of-Plea Tr. 45.
But the judge never told Pacheco that this subsequent
statement meant that he would be foreclosed from arguing on
appeal that such a sentence was "imposed
illegally," id. at 32, or that a sentence is
"imposed illegally" only if it conflicts with
"the stipulations that appear in the Plea
Agreement," id. at 32, 45.
upshot is that we "cannot say with the requisite
assurance" that Pacheco's surrender of his appellate
right "was sufficiently informed," Teeter,
257 F.3d at 27, insofar as it would extend to a sentence
characterized as "imposed illegally," as Pacheco
claims of the firearms sentence. Indeed, in practical terms,
the judge's explanation during the change-of-plea
colloquy instructed Pacheco that his waiver was not as broad
as the literal terms of the written agreement, and that he
was not waiving the right to appeal any element of the
subsequent sentence that could fairly be characterized as an
"illegal" imposition. The Government did not object
to the judge's explanation of the limit on the waiver,
and naturally Pacheco had no objection to conceding less than
he originally had bargained for. At his later sentencing
hearing, Pacheco confirmed his understanding of the scope of
his appeal waiver, making both the court and the Government
fully aware of his position, and there were no objections or
clarifications. He now seeks to enforce the limited scope of
his waiver, as it appears to have been understood by all
parties at the conclusion of the plea colloquy. Cf.