United States Court of Appeals For the First Circuit

No. 19-1129

UNITED STATES OF AMERICA,

Appellee,

v.

HECTOR VALDEZ, a/k/a Arnaldo Lopez, a/k/a Jose Ocasio, a/k/a Jose Altagracia, a/k/a Jorge Figueroa, a/k/a Hector Nunez, a/k/a Jesus Perez, a/k/a Ramon Alvarez Vegas, a/k/a Hector Bolivar Valdez Nunez, a/k/a Boli,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

Robert B. Mann and Robert B. Mann Law Office on brief for appellant. Donald C. Lockhart, Assistant United States Attorney, and Aaron L. Weisman, United States Attorney, on brief for appellee.

July 9, 2020 LYNCH, Circuit Judge. The defendant, Hector Valdez,

pleaded guilty pursuant to a plea agreement and was sentenced on

January 18, 2019, to 108 months' imprisonment and three years'

supervised release for his role in a major drug conspiracy that

distributed heroin and other drugs in Rhode Island, Massachusetts,

and Connecticut. Although the plea agreement he signed contained

an appeal waiver, he now appeals anyway, arguing that upholding

the validity of the appeal waiver would constitute a "miscarriage

of justice." Specifically, Valdez argues that the district court

erred in its consideration of the First Step Act, which was enacted

after Valdez signed the plea agreement but before he was sentenced.

See

Stat. 5194 (codified in scattered sections

of 18 U.S.C. and 34 U.S.C.).

The sentence the district court imposed was well below

the guideline range, was below the government's recommended

sentence, and explicitly accounted for the impact of the First

Step Act. There was no miscarriage of justice. The appeal waiver

controls, and this appeal is dismissed.

A. Background of the Offense and the Plea Agreement

Valdez was arrested on April 11, 2017, along with his

brothers Juan and Claudio and others, for his role in a conspiracy

to distribute kilogram quantities of heroin (sometimes laced with

fentanyl) and cocaine and other quantities of cocaine base (crack

cocaine) and opioids in pill form throughout Rhode Island,

- 2 - Massachusetts, and Connecticut. The arrests were the result of a

multi-year investigation conducted by ten different law

enforcement agencies. Valdez was charged with conspiring to

distribute, and to possess with intent to distribute, one kilogram

or more of heroin, and also substances containing fentanyl, cocaine

base, and cocaine, in violation of

(a)(1),

(b)(1)(A), and 846. He was also charged with illegal re-entry

after deportation, in violation of

(a) and (b)(2).

All three brothers had prior drug trafficking

convictions, and each had been deported previously. All three

were leaders and organizers of the drug conspiracy, but Hector

Valdez played more of a supporting role. He was, as described in

the Presentence Investigation Report ("PSR"), "perhaps the least

culpable of the three Valdez brothers," while still being "an upper

level conspirator" and part of "the inner-circle in this

conspiracy."

Valdez signed a plea agreement on May 2, 2018. Valdez

had multiple prior convictions. If the government had sought a

sentencing enhancement based on all of them, under the law at the

time the plea agreement was negotiated, Valdez would have faced a

mandatory life sentence. Under the terms of the plea agreement,

however, the government agreed to seek a sentencing enhancement

under

based on only one of his prior convictions,

thereby reducing his sentencing exposure to less than a life

- 3 - sentence. The government also agreed to file a motion under

U.S.S.G. § 5K1.1 recognizing Valdez's substantial assistance to

the authorities and "asking the Court to impose a sentence below

the guideline sentencing range and mandatory minimum sentence of

20 years imprisonment." The agreement acknowledged that "the

decision whether, and to what extent to grant [the motion], is

solely up to the Court."

Valdez agreed to cooperate in the government's case.

And he agreed to waive his right to appeal "if the sentence is a

term of imprisonment of 20 years or less."

At the change of plea hearing on May 18, 2018, the

district court asked Valdez if he understood that he was waiving

his right to appeal the sentence imposed if the sentence was

"within or below the guideline range." Valdez replied, "Yes."

B. Sentencing Proceedings

On August 30, 2018, as contemplated in the plea

agreement, the government filed a sentence enhancement information

under

listing only the one prior felony drug

conviction.

After accounting for Valdez's objection to an earlier

draft, the final PSR was filed with the district court on November

21, 2018. It calculated a Total Offense Level ("TOL") of 33, not

35 as an earlier draft of the PSR had stated, and a Criminal

History Category ("CHC") of II. Based on that, the Guideline

- 4 - Sentencing Range ("GSR") would have been 151 to 181 months'

imprisonment. But because of a statutorily-imposed mandatory

minimum, the restricted guideline sentence was 240 months', or

twenty years', imprisonment.

As contemplated in the plea agreement, on November 27,

2018, the government filed a motion pursuant to U.S.S.G. § 5K1.1

for a downward departure below the twenty-year mandatory minimum.

The government recommended a five-level reduction in the offense

level and a sentence of 120 months', or 10 years', imprisonment.1

Before the end of the sentencing proceedings, Congress

enacted the First Step Act on December 21, 2018. Section 401(a)(1)

of the Act changed the definition of "serious drug felony" such

that the drug conviction the government used in support of a

sentencing enhancement under

could no longer serve

as the basis for a twenty-year mandatory minimum sentence.

Instead, Valdez was subject to a ten-year mandatory minimum for

all drug offenses involving a kilogram or more of heroin, see

(b)(1)(A), before accounting for the impact of the

government's § 5K1.1 motion and any downward departure in

1 The government recommended a five-level reduction from 35 to 30, which produced a GSR of 108 to 135 months' imprisonment. This calculation apparently was made partially in error because the final PSR, released six days prior, had calculated an updated TOL of 33, not 35. A five-level reduction from the updated TOL of 33 would produce an adjusted GSR of 87 to 108 months' imprisonment. Any such error is immaterial to this appeal.

- 5 - recognition of Valdez's substantial assistance, see

(e).

Valdez filed a response to the government's § 5K1.1

motion on January 14, 2019. The response explained why, under the

First Step Act, the twenty-year mandatory minimum sentence would

no longer apply. It acknowledged that the TOL still would be 33,

as calculated by the PSR, with a resulting GSR of 151 to 188

months' imprisonment before accounting for any downward departure

in recognition of Valdez's substantial assistance.

Valdez's response to the § 5K1.1 motion then described

several ways that the government might update its recommended

sentence to account for the enactment of the First Step Act.

Valdez argued that a sentence of between sixty and ninety-seven

months would be appropriate and consistent with the logic of the

government's previous recommendation. Ultimately, based on

factors described in

(a), Valdez recommended that

the district court sentence him to thirty-six months'

imprisonment.

Valdez's sentencing hearing occurred several weeks

later, on January 18, 2019. First, the parties agreed that the

PSR had correctly calculated a TOL of 33, not 35, and a CHC of II,

with a corresponding GSR of 151 to 188 months' imprisonment. The

parties also agreed with the defense's analysis that the First

Step Act applied to Valdez because he had not been sentenced at

- 6 - the time of enactment. Therefore, the prior conviction that was

the basis for the sentencing enhancement that had subjected him to

the twenty-year minimum was no longer considered a "serious drug

offense," and Valdez was subject to the ten-year minimum instead.

The parties also agreed that, because the government had filed a

§ 5K1.1 motion for Valdez's substantial assistance, Valdez was

effectively not subject to any mandatory minimum.

The court then asked the government to update, in light

of the First Step Act's enactment, the sentencing recommendation

it had made in its § 5K1.1 motion. The government continued to

recommend 120 months', or ten years', imprisonment, calling the

change in law "unanticipated," and representing that had it known

about the First Step Act during plea negotiations, it would have

structured the plea agreement differently to reach the same

recommended sentence. The government argued that ten years

remained "fair" because of the nature of Valdez's offense, the

nature of his assistance to the government, the expectations of

the parties, and the need to avoid an unwarranted sentencing

disparity between Valdez and his two brothers, both of whom had

been sentenced to twenty years in prison.

Defense counsel renewed the arguments he had made in his

response to the government's § 5K1.1 motion, after the First Step

Act was enacted. Specifically, he continued to argue that the

government should not recommend the same sentence it did before

- 7 - the enactment of the First Step Act, and he described how the

government might recommend a sixty- or ninety-seven-month sentence

instead while remaining consistent with the logic of its previous

recommendation.

The district court rejected the government's 120-month,

or ten-year, recommendation. Instead, it applied the five-level

reduction the government had originally proposed to the correct

offense level of 33 to achieve an adjusted GSR of 87 to 108 months'

imprisonment. The defense had proposed this analysis in its

response to the government's § 5K1.1 motion as one of several ways

the government might amend its sentencing recommendation. But

instead of selecting a sentence in the middle of that range, like

ninety-seven months' imprisonment, as Valdez preferred, the

district court sentenced Valdez to 108 months in prison and three

years' supervised release. The court stated this sentence was

imposed to reflect the seriousness and scale of the crime, Valdez's

"five or six prior drug convictions," and his illegal reentry after

deportation.

The district court was explicit that this sentence

included recognition of his cooperation with the government and

that "the law has changed," a clear reference to the First Step

Act. "I took a year off . . . what [the government] asked for as

a happenstance of the new FIRST STEP law . . . . If not, I would

have stayed at the 120[-month recommendation], which I think was

- 8 - what the purpose of [the government's § 5K1.1 motion] was." The

court then reminded Valdez that he agreed to an appeal waiver and

ended the hearing by saying: "I want to make sure the record is

clear, I applied the FIRST STEP Act here, I applied the [§ 5K1.1

motion], and I applied the guidelines in a way that I think does

justice and honor to all of them as well as to Mr. Valdez."

Valdez timely appealed.

C. The Appeal Waiver Controls

Valdez argues that he should be allowed to appeal despite

his appeal waiver. His argument is not that there is anything

defective in the appeal waiver itself, which applies since he was

sentenced to 108 months in prison, within the "20 years or less"

contemplated in the plea agreement. Rather, he argues that his

case satisfies the test for when an appeal waiver must be set

aside.

United States v. Morillo describes the criteria used to

evaluate the claims Valdez makes:

- First, the written waiver must comprise "a clear statement" describing the waiver and specifying its scope. [United States v.] Teeter, 257 F.3d [14,] 24 [(1st Cir. 2001)]. - Second, "[m]indful" of [Federal] Rule [of Criminal Procedure] 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

- 9 - 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.

United States v. Morillo,

(1st Cir. 2018) (some

alterations in original), cert. denied,

(2019).

Valdez does not challenge the first two grounds. Rather,

he argues that his appeal waiver should be set aside under

Morillo's "miscarriage of justice" standard. He argues that the

district court committed a miscarriage of justice by considering

the government's sentencing recommendation of 120 months', or ten

years', imprisonment, even though that recommendation "was based

on an incorrect version of the presentence report and did not take

into proper account the First Step Act, resulting in an erroneous

guideline calculation."

There was no miscarriage of justice, and the appeal

waiver controls. The district court did not make any erroneous

calculations, let alone an error that would have made this one of

the "egregious cases" that meets the miscarriage of justice

standard. Morillo,

(quoting Teeter, 257 F.3d at

25). The court correctly found that the pre-departure GSR was 151

to 188 months' imprisonment, based on a TOL of 33. It correctly

recognized that the First Step Act changed the pre-departure

mandatory minimum from twenty years to ten years. And the district

- 10 - court was correct that the government's § 5K1.1 motion eliminated

its obligation to sentence Valdez to this lower minimum.

On appeal, Valdez almost concedes the point, focusing

much of his argument on what the government should have recommended

and not on what the district court ultimately did. Valdez provides

no authority for the proposition that the district court's mere

consideration of the government's recommendation could result in

a miscarriage of justice.

Valdez received a sentence well below the unadjusted GSR

of 151 to 188 months' imprisonment. The sentencing court's

"discretion to decide the amount of the departure after a 5K1.1

motion" is "almost unreviewable." United States v. Webster,

(1st Cir. 1995). Nonetheless, the district court applied

the same five-level reduction the government originally

recommended in recognition of Valdez's assistance, as Valdez

requested. The sentence was also below the government's updated

recommendation of 120 months, or ten years. The court explicitly

accounted for the First Step Act as well and gave Valdez a year

less on his sentence than it would have otherwise, against the

government's recommendation. There is no miscarriage of justice

that would excuse Valdez's waiver of his right to appeal.

D. Conclusion

The appeal is dismissed.

- 11 -