FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge]
A. Feldman and Feldman and Feldman on brief for appellant.
J. Farley, Acting United States Attorney, and Seth R. Aframe,
Assistant United States Attorney, on brief for appellee.
Thompson, Boudin, and Kayatta, Circuit Judges.
BOUDIN, CIRCUIT JUDGE.
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
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. 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."
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).
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
- 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.
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.
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 ...