United States Court of Appeals For the First Circuit

No. 09-2545

UNITED STATES OF AMERICA,

Appellee,

v.

ALVIN RÍOS-HERNÁNDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Torruella, Circuit Judge, Souter,* Associate Justice, and Boudin, Circuit Judge.

Amy R. Silverman, with whom Alan D. Rose and Rose, Chinitz & Rose, were on brief for appellant. Carmen M. Márquez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, Unites States Attorney, Nelson Pérez- Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief for appellee.

June 2, 2011

* The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. TORRUELLA, Circuit Judge. Defendant-appellant Alvin

Ríos-Hernández entered into a plea agreement with the government

and pled guilty to one count of taking, by force and "with the

intent to cause death or serious bodily harm . . . a motor vehicle

that has been transported, shipped, or received in interstate or

foreign commerce" in violation of

. He now

challenges (1) the validity of the waiver-of-appeal provision in

the plea agreement, and (2) the enhanced sentence he received

because he was designated as a career offender. Although we do not

consider the appeal foreclosed by the waiver-of-appeal provision,

we find that his appeal does not withstand the onerous burden of

plain error review and we therefore affirm the district court's

sentence.

I. Background

When considering a sentencing appeal following the entry

of a guilty plea, we gather the facts from the change-of-plea

colloquy, the plea agreement and the uncontested portions of the

presentence investigation report (the "PSI"). United States v.

Madera-Ortiz, No. 10-1474,

(1st

Cir. Feb. 25, 2011); United States v. Fernández-Cabrera,

(1st Cir. 2010); Sotirion v. United States,

(1st Cir. 2010). On November 3, 2008, a man drove his 2005 white

Toyota Echo to the beach in Aguadilla, Puerto Rico. Ríos-Hernández

attacked the man with a knife, abandoned him at the scene, and took

-2- his car. The victim sustained serious bodily injuries. Ríos-

Hernández later abandoned the car in Isabela, Puerto Rico.

The federal grand jury charged Ríos-Hernández with one

count of taking, by force and with the intent to cause death or

serious bodily harm, a motor vehicle that had been transported,

shipped, or received in interstate or foreign commerce in violation

of

. Ríos-Hernández and the government entered

into a plea agreement pursuant to Federal Rule of Criminal

Procedure 11(c)(1). The agreement provided that Ríos-Hernández

would plead guilty to the count charged in the indictment and that

the parties would recommend that the court sentence him to the

lower end of the applicable guideline range. The parties did not

stipulate as to the defendant's criminal history category. The

plea agreement did, however, outline his sentencing exposure and

provide estimated guideline sentencing ranges for criminal

categories one through six.

The plea agreement also contained a waiver-of-appeal

provision which stated, "The defendant hereby agrees that if this

Honorable Court accepts this Plea Agreement and sentences him

according to its terms, conditions and recommendations, defendant

waives and surrenders his right to appeal the judgement [sic] and

sentence in this case."

During the change-of-plea colloquy, which took place on

June 12, 2009, the court addressed the defendant to ensure he

-3- understood that he was waiving certain rights due to his guilty

plea. The court specifically questioned the defendant regarding

the waiver-of-appeal provision in the plea agreement:

THE COURT: You could appeal a sentence imposed under the guidelines, but your Plea Agreement is going to contain a waiver of appeal clause. That means there will be no appeal in this case. Do you understand that?

THE DEFENDANT: Yes.

MR. GUZMÁN [Defense counsel]: Your Honor, just to be absolutely sure that we're straight, Your Honor, Paragraph 17 I think is the waiver of appeal, and we adhere to that as written in the Plea Agreement.

THE COURT: Absolutely, and you know if something extraordinary happens I will let him appeal.

MR. GUZMÁN: I understand, Your Honor.

THE COURT: Okay. If the sentence that you receive is more severe than what you expect, that by itself will not allow you to withdraw your plea. Is that clear?

THE DEFENDANT: Yes.

The United States Probation Office filed the PSI on

October 14, 2009. The PSI classified Ríos-Hernández as a career

offender pursuant to the U.S. Sentencing Guidelines ("Sentencing

Guidelines"), U.S. Sentencing Guidelines Manual ("U.S.S.G.")

§ 4B1.1 (2009), based on two prior felony convictions for crimes of

violence -- a violation of

, the Abuse

by Threat statute, for which he was arrested on November 25, 2004,

and a violation of

, the Abuse statute,

-4- for which he was arrested on September 28, 2006. In the sentencing

memorandum that he submitted on October 19, 2009, Ríos-Hernández

argued that he should not be classified as a career offender.

Defense counsel argued that "even though Mr. Rios technically

qualifies as a career offender, the circumstances herein were not

those envisioned by that guideline section. . . . The career

offender guideline was not meant to be triggered by two prior

convictions involving consensual mutual combat between two

individuals who chose this behavior as their lifestyle." Ríos-

Hernández's sentencing memorandum also explained that "[t]he

relationship between [Ríos-Hernández] and his common law

wife . . . has been described as mutually combative. They were

both using drugs and . . . under the influence [when] they fought.

When the fights occurred, his wife would report them to the police.

He never did."

The sentencing was held on October 20, 2009. Defense

counsel objected again to Ríos-Hernández's classification as a

career offender, making the same arguments that he made in the

sentencing memorandum. The following exchange took place during

the sentencing hearing:

MS. MÁRQUEZ [for the government]: Your Honor, as far as the Government goes, we agreed to recommend a sentence of . . . 25 -- just at the offence level 25, but we didn't know what criminal history.

. . . .

-5- THE COURT: But what criminal history -- can I see the Plea Agreement?

MR. GUZMÁN: Yes, Your Honor.

MS. MÁRQUEZ: Yes, Your Honor. There is no stipulation as to the Criminal History Category, Your Honor. Just level 25, lower end of the applicable guidelines.

THE COURT: You consider all the possibilities here, 25, and [the Criminal History Category] went from I to VI.

MS. MÁRQUEZ: Exactly, and no stipulation, Your Honor.

THE COURT: And the stipulation was that he be sentenced to the lower end of the applicable guidelines?

MS. MÁRQUEZ: Exactly.

. . . .

THE COURT: I'm saying rather than using a VI and a 31, rather than using a BOL of 31 and a Criminal History Category of VI, use a 25 with a Criminal History Category of VI. That fits exactly within the Plea Agreement.

MS. MÁRQUEZ: Okay.

MR. GUZMÁN: Okay. I mean I'm saying okay like if I had a say in this. I understand what you're saying.

. . . .

MS. MÁRQUEZ: Your Honor, just that we stand by the Plea Agreement, and we recommend the lower end of the applicable guideline.

. . . .

THE COURT: . . . I'd rather sentence him at the level contemplated by the parties in the Plea Agreement, which is a BOL of 25, Criminal

-6- History Category of VI. That gives us a Guideline Imprisonment Range of 110 to 137 months; a fine range of 10,000 to 100,000; and supervision of at least two to five.

. . . .

THE COURT: . . . And I will sentence him to 120 months, which is kind of a middle range; no fine; and five years of supervision under the standard conditions . . . .

. . . .

Even though he waives his right to appeal in this case, I am going to recognize his right to have the sentence reviewed by the Court of Appeals.

The defendant was classified as a career offender under

U.S.S.G. § 4B1.1 because he had two predicate offenses. The

district court entered judgment on October 20, 2009. The court

sentenced the defendant to a term of one hundred and twenty months

of imprisonment and five years of supervised release. Ríos-

Hernández filed a notice of appeal on October 22, 2009.

II. Discussion

Ríos-Hernández argues that his waiver-of-appeal is

invalid because the district court's statements at the change-of-

plea hearing and at the sentencing were so misleading that his

-7- waiver-of-appeal was not knowing and voluntary.1 On appeal, he

seeks to challenge his classification as a career offender.

A. Presentence Waiver of Appellate Rights

A criminal defendant may waive his right to appeal as

long as his waiver is voluntary and made with knowledge of the

consequences of the waiver. United States v. Teeter,

(1st Cir. 2001). In order to ensure that such waiver is

knowing and voluntary, the Federal Rules of Criminal Procedure

require that the court "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). To determine the

validity of a waiver of rights, we focus on the plea agreement and

the change-of-plea colloquy. Teeter,

. In

particular, we determine (1) whether the written plea agreement

"contains a clear statement elucidating the waiver and delineating

its scope"; (2) "whether the court's interrogation suffices to

ensure that the defendant freely and intelligently agreed to waive

[his] right to appeal [his] forthcoming sentence"; and (3) whether

"denying a right of appeal would work a miscarriage of justice[.]"

.

1 The appellant claims that the following statements were misleading: 1) "you know if something extraordinary happens I will let him appeal"; and 2) "Even though he waives his right to appeal in this case, I am going to recognize his right to have the sentence reviewed by the Court of Appeals."

-8- We must construe plea agreements and waiver-of-appeal

provisions therein according to basic contract principles. United

States v. Acosta-Román,

(1st Cir. 2008). Any

ambiguities should be resolved in favor of allowing the appeal to

proceed. Fernández-Cabrera,

.

We assume, without deciding, that the waiver of appellate

rights would have been valid under Teeter, see

,

but we will consider the merits because we find that the district

court failed to sentence the defendant according to the agreed upon

recommendation, and that the defendant's waiver was conditional on

receiving a sentence consistent with that recommendation.2 See

Fernández-Cabrera,

(finding that the waiver-of-

appeal provision did not prevent defendant's appeal where the court

did not follow the parties' joint recommendation and the waiver-of-

appeal provision was conditional on the court sentencing the

defendant according to the parties' joint recommendation).

We find that Fernández-Cabrera controls in this case.

There, we allowed the appeal to proceed despite the fact that the

defendant signed a plea agreement with a waiver-of-appeal provision

because the district court did not follow the parties' joint

sentencing recommendation.

The language of the waiver

provision in Fernández-Cabrera was such that the waiver "[did] not

2 We therefore need not address whether the district court's statements at the change-of-plea hearing and the sentencing would have nullified the waiver.

-9- attach unless the district court ha[d] 'sentence[d] the defendant

according to the sentencing recommendations contemplated [in the

plea agreement].'"

Similarly, the language in Ríos-

Hernández's plea agreement states that he waives and surrenders his

right to appeal "if [the] Honorable Court . . . sentences him

according to [the plea agreement's] terms, conditions and

recommendations" (emphasis added). The sentencing recommendation

in the Fernández-Cabrera plea agreement was "a joint entreaty that

the district court sentence the defendant to a term of imprisonment

'equal to the lower end of the applicable guidelines.'"

Likewise, the sentencing recommendation in the Ríos-Hernández plea

agreement was "that the defendant be sentenced to the lower end of

the applicable guidelines." Finally, like in Fernández-Cabrera,

where the district court sentenced the defendant to a mid-range

sentence instead of the low-end sentence recommended in the plea

agreement,

the district court sentenced Ríos-Hernández to a

"middle range" sentence. Here, the condition upon which the

waiver-of-appeal depended -- that the defendant's sentence be in

the lower end of the applicable guidelines -- was not satisfied.

We acknowledge that there is a difference between the

sentencing recommendation in Fernández-Cabrera and the

recommendation in the present case. The parties in Fernández-

Cabrera were sure that the guideline sentencing range was between

thirty and thirty-seven months,

whereas the parties in this

-10- case knew only that the offense level was twenty-five; there was no

stipulation as to the defendant's criminal history category.

However, regardless of the applicable criminal history category,

the court sentencing Ríos-Hernández recognized that "the

stipulation was [that] he be sentenced to the lower end of the

applicable guidelines[,]" noted that the applicable range was 110

to 137 months, and yet decided to "sentence [Ríos-Hernández] to 120

months, which is kind of a middle range." We conclude that "the

waiver-of-appeal provision, as framed, was relegated to the scrap

heap[,]"

and we therefore proceed to the merits.

B. Career Offender Classification

Ríos-Hernández argues that the district court erred in

classifying him as a career offender pursuant to section 4B1.1 of

the Sentencing Guidelines because his conviction under Puerto

Rico's Abuse by Threat statute,

, is

not a crime of violence. The government contends that the

defendant waived this argument because it is different from the one

he presented below. In the sentencing memorandum filed in the

district court, Ríos-Hernández objected to the conclusion in the

PSI that he was a career offender pursuant to U.S.S.G. § 4B1.1,

arguing that "[t]he career offender guideline was not meant to be

triggered by two prior convictions involving consensual mutual

combat between two individuals who chose this behavior as their

lifestyle." Although this is a general objection to the

-11- defendant's classification as a career offender, it was not

sufficient to give the district court notice of the specific issue

raised here -- that the court should have used the categorical

approach to determine whether the defendant's conviction under the

Abuse by Threat was a "crime of violence." See United States v.

Ahrendt,

(1st Cir. 2009) (applying plain error

review to an argument on appeal where the defendant's generic

objection could not "be fairly interpreted as giving notice to the

court of the[] . . . very specific issues [on appeal]"). We

conclude that Ríos-Hernández's argument in the district court is

sufficiently different from the one raised on appeal that the

argument is forfeited and will be reviewed for plain error. United

States v. Capozzi,

(1st Cir. 2007) (noting that

an argument that was forfeited would be reviewed only for plain

error); United States v. Lilly,

, 17-18 & n.6 (1st Cir.

1994) (noting that legal arguments cannot be interchanged at will

and determining that an argument not squarely raised in the lower

court is waived, except where the error is plain).

A party seeking to survive the onerous challenge of plain

error review "must show: '(1) that an error occurred (2) which was

clear and obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings.'"

Ahrendt,

(quoting United States v. Duarte, 246 F.3d

-12- 56, 60 (1st Cir. 2001)). We conclude that the appellant does not

clear the high bar to surpass plain error review. Lilly,

n.6 ("The criteria for a finding of plain error in the

sentencing context are . . . rigorous.").

Assuming, without deciding, that an error occurred, we

find that Ríos-Hernández does not satisfy the second criterion of

the plain error standard. The error, namely, the failure to use

the categorical approach to determine whether the defendant's prior

conviction under the Abuse by Threat statute was a "crime of

violence," United States v. Almenas,

(1st Cir.

2009), was not clear and obvious.3 The defendant's sentencing

memorandum stated that "even though Mr. Rios [sic] technically

qualifies as a career offender, the circumstances here were not

those envisioned by that guideline section[,]" (emphasis added) and

described the prior convictions as "involving consensual mutual

3 The categorical approach requires a court to compare the statutory definition of the relevant offense with the definition of "crime of violence," as stated in section 4B1.2 of the Sentencing Guidelines. Taylor v. United States,

(1990); Almenas,

. If the court determines that the language of the statute is "broad enough to criminalize both violent and non-violent conduct," the court must take a second step and "determine whether a defendant was actually charged with an offense that involved violent or potentially violent conduct." United States v. Williams,

(1st Cir. 2008). When conducting the second step of the categorical approach, the court may look to "charging documents filed in the court of conviction, . . . recorded judicial acts of that court, . . . a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases . . . a transcript of [the] plea colloquy or [the] written plea agreement presented to the court . . . ." Shepard v. United States,

(2005).

-13- combat." At the sentencing hearing, defense counsel again

characterized the prior offenses in the same way. The district

court could have reasonably interpreted the statements in the

defendant's sentencing memorandum and his counsel's statements

during the sentencing hearing as acquiescence that both domestic

violence convictions involved (1) statutes containing "the

use . . . or threatened use of physical force against the person of

another" as an element or (2) offenses that "involve[] conduct that

presents a serious potential risk of physical injury to another."

See U.S.S.G. § 4B1.2. Given this apparent acquiescence to the

characterization of the prior convictions as crimes of violence and

the lack of objection to the court's reliance on the PSI as a

source of information about the nature of the prior convictions, we

cannot say that it would have been clear and obvious to the

district court4 that it should have conducted the categorical

approach and possibly probed further into the record of conviction.

See United States v. Jiménez,

(1st Cir. 2007)

4 We note that we may examine an error that was not clear and obvious to the district court where the error becomes clear on appeal because settled law subsequently changes. United States v. Dancy, No. 09-2628,

(1st Cir. Apr. 13, 2011) (noting that plain error review applies to an argument that was not raised in the district court and settled law has changed between trial and appeal); United States v. Barone,

(1st Cir. 1997) ("'[I]n a case such as this-where the law at the time of trial was settled and clearly contrary to the law at the time of appeal-it is enough that an error be "plain" at the time of appellate consideration[.]'" (quoting Johnson v. United States,

(1997))).

-14- ("Where, as here, the characterization of an offense contained in

a presentence report is not disputed before the sentencing court,

the report itself is competent evidence of the fact stated and,

thus, is sufficient proof of that fact."); United States v.

Turbides-Leonardo,

(1st Cir. 2006) (finding no

clear and obvious error where defendant seemingly acquiesced to the

characterizations and computations contained in the PSI report and

the district court therefore did not employ the categorical

approach to determine whether the prior conviction was a predicate

offense qualifying him for a sentencing enhancement). The

defendant failed to satisfy the second requirement to show that

there was plain error.

III. Conclusion

Because appellant fails to meet the onerous plain error

standard of review, we affirm.

Affirmed.

-15-