United States v. Mercedes Amparo, 1st Cir. (1992)
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Scribd Government DocsUSCA1 Opinion
November 23, 1992
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_____________________
No. 92-1483
No. 92-1483
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
JOSE MERCEDES-AMPARO,
JOSE MERCEDES-AMPARO,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
____________________
Before
Before
Breyer, Chief Judge,
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
_____________
____________________
____________________
Luz M. R os Rosario for appellant.
Luz M. R os Rosario for appellant.
___________________
Esther Castro Schmidt, Assistant United States Attorney, w
Esther Castro Schmidt, Assistant United States Attorney, w
_______________________
whom Daniel F. Lopez-Romo, United States Attorney, and Jos A. Qui
whom Daniel F. Lopez-Romo, United States Attorney, and Jos A. Qui
____________________
___________
Espinosa, Senior Litigation Counsel, were on brief for appellee.
Espinosa, Senior Litigation Counsel, were on brief for appellee.
________
____________________
____________________
____________________
____________________
CYR,
CYR,
Circuit Judge.
Circuit Judge.
_____________
Appellant
Jose Mercedes
Amparo
pled guilty to attempting to bring illegal aliens into the United
States
the
in violation of 8 U.S.C.
1324(a)(1)(A).
twenty-four month prison term
was disproportionately severe and
departure.
We remand for
breach of its plea
He claims that
imposed by the district court
premised on an improper upward
resentencing due to
the government's
agreement obligation to recommend
a sentence
within the applicable guideline sentencing range ("GSR").
I
I
BACKGROUND
BACKGROUND
__________
On September 27, 1991, the
intercepted a 38-foot
from the
yawl carrying
United States Border Patrol
ninety-five illegal
Dominican Republic to Aguadilla, Puerto
not a designated
port of entry into
aliens
Rico, which is
the United States.
Border
Patrol agents found neither food nor water aboard the vessel, nor
did
they
find
life
jackets, safety
or
emergency
sanitary facilities, or a radio for communication.
identified
as
a captain
of the
vessel
equipment,
Appellant was
and arrested.
The co-
captain
was arrested as well, and both men were indicted under 8
U.S.C.
1324(a)(1)(A).
Appellant
entered into
plea agreement
whereby
he
would plead guilty to
one count, in return for
recommendation
sentence
dismissal of
district
offense of
of
the
a
two
within the
remaining
court assigned
counts.
a base
2L1.1(a)(2),
tance
of responsibility,
which was reduced
then
applicable
At
offense level
conviction under 8 U.S.C.
S.G.
the government's
GSR
and
sentencing,
the
of nine
for the
1324(a)(1)(A), see U.S.___
by two levels
offset by
a two
for accep-
level increase
because appellant, as a captain of the vessel, provided a special
skill to facilitate the commission
3B1.3.
category
court
The
adjusted offense
level of nine,
I criminal history, yielded
decided to depart
resulted
of the offense, see
___
combined with
a 4-to-10 month
upward to offense
U.S.S.G.
GSR.
The
level fifteen, which
in an 18-to-24 month GSR, then sentenced appellant to a
twenty-four month prison term.
At oral argument on
appeal, appellant asserted for the
first time that the government had breached an
in the plea agreement
4-to-10 month
recommendation
GSR.
express provision
by not recommending a sentence
Government
had been
made.
counsel conceded
Moreover, we note,
within the
that no
such
sua sponte,
___ ______
that
the
presentence
report ("PSR")
misstates
the
pertinent
provision in the plea agreement.1
____________________
1Although the plea agreement plainly states that "the
parties have agreed to recommend that the sentence to be imposed
be within the guideline range," the PSR states: "On December 12,
1991, the defendant pled guilty to count one pursuant to the plea
agreement which proposes that in exchange for the defendant's
plea of guilt [sic] the government will not make a recommendation
___ ____ _ ______________
as to sentencing, but will move the Court for dismissal of the
__ __ __________
remaining counts." (Emphasis added.) Elsewhere, the PSR states:
"Under the plea agreement, the defendant has pled guilty to count
one in exchange for the dismissal of count[s] two and three."
3
II
II
DISCUSSION
DISCUSSION
__________
"Plea bargaining is a
justice system . . .," Correale
fundamental part of our criminal
v. United States, 479 F.2d
944,
________
947
(1st Cir.
expedition
1973),
in
though
the administration
benefits "flow . .
the
but
_____________
it promotes
of criminal
. from the defendant's
constitutional
rights
we
efficiency
and
proceedings, its
waiver of almost
deem fundamental.
There
all
must
accordingly be safeguards to insure that the waiver is knowledgeable . . . and voluntary . . . ."
395
U.S. 238 (1969), and
487 (1962)).
Id. (citing Boykin v. Alabama,
___
______
_______
Machibroda v. United States, 368 U.S.
__________
______________
"Though a legitimate prosecution promise
does not
render a guilty plea legally involuntary, Brady v. United States,
_____
_____________
397
a
U.S. 742 (1970), its fulfillment is a necessary predicate to
conclusion of voluntariness when a plea 'rests in any signifi-
cant degree' on it."
Correale, 479 F.2d at 947
________
(quoting Santo______
bello v. New York, 404 U.S. 257, 262 (1971)).
_____
________
Ordinarily,
court
will not
United States v.
_____________
be
"an issue
addressed for
Curzi, 867 F.2d
_____
also United States v. Fox,
____ ______________
___
United States v. Figueroa,
_____________
________
the
Singleton v. Wulff,
on
district
appeal."
Cir. 1989).
See
___
357, 359 (1st
Cir. 1989);
818 F.2d 1020, 1025 (1st
Cir. 1987);
F.2d 783, 791
court nevertheless has the
an exceptional case,
in the
first time
36, 44 (1st
889 F.2d
United States v. Argentine, 814
______________
_________
An appellate
not presented
to resolve
(1st Cir. 1987).
discretionary power, in
an issue not
428 U.S. 106, 121 (1976).
passed on
below.
See United States
_________
_____
___ _____________
4
v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990); United States
__________
_____________
v. Krynicki, 689 F.2d
________
tionary appellate
be
exercised
289 (1st Cir. 1982).
power to consider an
Although the discre-
unpreserved issue should
sparingly, La Guardia, 902
___________
appropriately
invoked if
F.2d
"'injustice might
at 1013,
it is
otherwise result.'"
Singleton, 428 U.S. at 121 (quoting Hormel v. Helvering, 312 U.S.
_________
______
_________
552, 557 (1941)).
The issue
teristics which
belatedly raised on appeal
we have
warrant appellate
exhibits charac-
considered sufficiently
review in
other cases.
exceptional to
The issue is
one of
law, as there is no dispute that the plea agreement was breached;
and the issue is susceptible of resolution on the present record.
See
___
1013.
Krynicki, 689 F.2d at 291; see
________
___
Moreover,
question remaining
F.2d at 292;
due to
the
also La Guardia, 902 F.2d at
____ __________
nature of
the breach,
is the appropriate remedy.
see also La
Guardia, 902 F.2d
the
only
See Krynicki, 689
___ ________
at 1013.
Finally,
___ ____ ___________
appellate
deferral
of the
belated
claim
would
not "aid
the
administration of the criminal justice system," see Krynicki, 689
___ ________
F.2d at 292;
see also La Guardia, 902 F.2d
___ ____ ___________
importantly,
it might well result in a miscarriage of justice in
the present case.
See Singleton, 428
___ _________
at 1013, and,
U.S. at 121;
most
La Guardia,
__________
902 F.2d at 1013; Krynicki, 689 F.2d at 292.
________
There is
no conceivable basis for
government's promise to recommend
not
significant factor
Correale, 479 F.2d
________
at 947.
in
concluding that the
a sentence within the GSR
inducing appellant's
Moreover, the
plea.
was
See
___
material misstatement
in
the PSR
that the
recommendation
may
believe
government was
that the
sentence
within the
prepared
to assume
government
well have
GSR.
misled the
under no
__
In these
either that
would make
no
sentencing
district court
duty to
____
recommend a
circumstances, we
the government's
to
are not
commitment to
recommend
cance
a sentence within the GSR
was a matter of no signifi-
in obtaining appellant's guilty plea, see id., or that the
___ ___
court would not
ment's
have given serious consideration to
sentencing recommendation
cannot exclude all likelihood
had it
the govern-
been made.
Thus,
we
that appellant's waiver of consti-
tutional rights lacked the requisite voluntariness, see Correale,
___ ________
479 F.2d at
result
947, or that our failure to
in a miscarriage of justice.
address the issue would
See Singleton, 428 U.S. at
___ _________
121 (appellate resolution of unpreserved issue may be appropriate
where injustice would otherwise result).2
The undisputed breach of
agreement,
within
requiring
the GSR,
the
must be
a core provision in
government
remedied.3
to recommend
Normally, a
of
the unperformed
provision
or
v. Canada, 960
______
109, 133 (1st Cir. 1992);
F.2d 263, 271 (1st Cir.
specific
by allowing
defendant to withdraw the plea and proceed to trial.
United States, 968 F.2d
_____________
sentence
plea bargain
breach by the government may be remedied either through
performance
the plea
the
Kingsley v.
________
United States
_____________
1992); see Santobello v.
___ __________
____________________
2We note as well that appellant is illiterate.
3Although we accept the government's assurances at oral
argument that its breach was inadvertent, "[t]hat . . . does not
lessen its impact." Santobello, 404 U.S. at 262.
__________
6
New York, 404
________
U.S. 257, 263
(1971).
"In
choosing a remedy,
court must exercise its 'sound discretion . . . under the circumstances
of
extreme
remedy, is preferred."
tions
each case.'
. .
Specific performance,
the less
Kingsley, 968 F.2d at 113 (cita________
omitted) (quoting United States v. Garcia, 698 F.2d 31, 37
_____________
______
(1st Cir. 1983)).
We believe specific performance is appropriate in these
circumstances.
Although it
breach,4 appellant's
instruction that
the
withdrawal of
preference
for specific
the plea.
Moreover,
at 113; Canada, 960 F.2d
______
at 271.
the
the express
the [GSR]" indi-
performance,
the choice
rests with the court, not with the defendant.
not
nature of
request for "resentencing with
appellant be sentenced within
cates appellant's
than
misapprehends
rather
of remedy
Kingsley, 968 F.2d
________
As specific performance
would
be "meaningless" in these circumstances, see id. at 114, but
___ ___
more appropriate than other remedies we
might fashion, we vacate
the sentence and remand for resentencing before a different judge
in accordance
with our normal practice.
See Canada, 960 F.2d at
___ ______
271
(remanding
for resentencing
before
different judge
to
remedy government's plea bargain breach).
Vacated and remanded for resentencing.
_______ ___ ________ ___ _____________
____________________
4Appellant's brief on appeal faults the district court's
failure to impose a sentence within the GSR.
However, the plea
______
agreement expressly provides that "the sentence will be left
entirely to the sound discretion of the court . . ." Thus, the
appellant was not entitled to a sentence within the GSR, but to
the government's recommendation of such a sentence.
______________
7
