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United States v. Morillo

United States Court of Appeals, First Circuit

December 4, 2018

UNITED STATES OF AMERICA, Appellee,
v.
FRANKLYN MORILLO, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge]

         Steven A. Feldman and Feldman and Feldman on brief for appellant.

          John J. Farley, Acting United States Attorney, and Seth R. Aframe, Assistant United States Attorney, on brief for appellee.

          Before Thompson, Boudin, and Kayatta, Circuit Judges.

          BOUDIN, CIRCUIT JUDGE.

         In October 2016, Franklyn Morillo pled guilty in New Hampshire district court to conspiracy to distribute and possess with intent to distribute oxycodone and cocaine. In May 2017, the district judge sentenced Morillo to 168 months in prison. Morillo now appeals to contest his sentence. Morillo challenges the application of particular sentencing enhancements and the imposition of certain supervised-release conditions.

         At the threshold, the government says that Morillo has no right to contest his sentence because his guilty plea, the result of a plea bargain with the government, includes an express waiver of his right to appeal his conviction or sentence if his sentence rests on a base offense level no lower than twenty six and no higher than thirty.[1] At sentencing, the district judge ruled that Morillo had a base offense level of thirty, thus satisfying the condition on which the waiver rested. Morillo responds that the district judge (allegedly) "failed to conduct any meaningful interrogation on the waiver."

         In 1999, a new rule of criminal procedure became effective, now re-codified and designated Federal Rule of Criminal Procedure 11(b)(1)(N). Rule 11(b)(1)(N) requires that when a defendant seeks to waive his or her right to appeal a sentence when pleading guilty--today a common provision sought by the government in plea bargains--the judge "must inform the defendant of, and determine that the defendant understands, . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence . . . ." Fed. R. Crim. P. 11(b)(1)(N).

         A year and a half later, this court, in an opinion by Judge Selya, addressed several legal questions relating to the new rule. United States v. Teeter, 257 F.3d 14 (1st Cir. 2001). By a formulation repeatedly cited by this court thereafter, Teeter requires that appeal waivers meet three criteria:

- First, the written waiver must comprise "a clear statement" describing the waiver and specifying its scope. Teeter, 257 F.3d at 24.
-Second, "[m]indful" of Rule 11(b)(1)(N), the record must show that the judge's interrogation "suffice[d] to ensure that the defendant freely and intelligently agreed to waive [his or] her right to appeal [his or] her forthcoming sentence." Id.
-Third, even if the plea agreement and the change of plea colloquy are satisfactory, the reviewing court retains discretion to refuse to honor a waiver if denying a right to appeal would "work a miscarriage of justice." Id. at 25.

         Next, in United States v. Borrero-Acevedo, 533 F.3d 11 (1st Cir. 2008), Judge Lynch resolved another appeal from a sentence following a defendant's waiver of his right to appeal. At the change-of-plea proceeding, the magistrate judge had failed to comply with Rule 11(b)(1)(N). On appeal, the defendant attempted to avoid the effect of his appeal waiver because of the judge's failure to ask him specifically about the waiver; but the defendant had not made a contemporaneous objection to this failure.

         Applying Supreme Court plain-error decisions, Judge Lynch ruled that when a defendant fails to preserve an alleged error regarding his appeal-waiver colloquy, the defendant must show "a reasonable probability that he would not have entered the plea had the error not been made." Borrero-Acevedo, 533 F.3d at 13-14. Borrero ...


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