-
USCA1 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, with
Esther Castro Schmidt, Assistant United States Attorney, with
_______________________
whom Daniel F. Lopez-Romo, United States Attorney, and Jos A. Quiles
whom Daniel F. Lopez-Romo, United States Attorney, and Jos A. Quiles
____________________ ______________
Espinosa, Senior Litigation Counsel, were on brief for appellee.
Espinosa, Senior Litigation Counsel, were on brief for appellee.
________
____________________
____________________
____________________
____________________
CYR, Circuit Judge. Appellant Jose Mercedes Amparo
CYR, Circuit Judge.
_____________
pled guilty to attempting to bring illegal aliens into the United
States in violation of 8 U.S.C. 1324(a)(1)(A). He claims that
the twenty-four month prison term imposed by the district court
was disproportionately severe and premised on an improper upward
departure. We remand for resentencing due to the government's
breach of its plea agreement obligation to recommend a sentence
within the applicable guideline sentencing range ("GSR").
I
I
BACKGROUND
BACKGROUND
__________
On September 27, 1991, the United States Border Patrol
intercepted a 38-foot yawl carrying ninety-five illegal aliens
from the Dominican Republic to Aguadilla, Puerto Rico, which is
not a designated port of entry into the United States. Border
Patrol agents found neither food nor water aboard the vessel, nor
did they find life jackets, safety or emergency equipment,
sanitary facilities, or a radio for communication. Appellant was
identified as a captain of the vessel 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 a plea agreement whereby he
would plead guilty to one count, in return for the government's
recommendation of a sentence within the applicable GSR and
dismissal of the two remaining counts. At sentencing, the
district court assigned a base offense level of nine for the
offense of conviction under 8 U.S.C. 1324(a)(1)(A), see U.S.-
___
S.G. 2L1.1(a)(2), which was reduced by two levels for accep-
tance of responsibility, then offset by a two level increase
because appellant, as a captain of the vessel, provided a special
skill to facilitate the commission of the offense, see U.S.S.G.
___
3B1.3. The adjusted offense level of nine, combined with a
category I criminal history, yielded a 4-to-10 month GSR. The
court decided to depart upward to offense level fifteen, which
resulted 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 express provision
in the plea agreement by not recommending a sentence within the
4-to-10 month GSR. Government counsel conceded that no such
recommendation had been made. Moreover, we note, 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 fundamental part of our criminal
justice system . . .," Correale v. United States, 479 F.2d 944,
________ _____________
947 (1st Cir. 1973), but though it promotes efficiency and
expedition in the administration of criminal proceedings, its
benefits "flow . . . from the defendant's waiver of almost all
the constitutional rights we deem fundamental. There must
accordingly be safeguards to insure that the waiver is knowledge-
able . . . and voluntary . . . ." Id. (citing Boykin v. Alabama,
___ ______ _______
395 U.S. 238 (1969), and Machibroda v. United States, 368 U.S.
__________ ______________
487 (1962)). "Though a legitimate prosecution promise does not
render a guilty plea legally involuntary, Brady v. United States,
_____ _____________
397 U.S. 742 (1970), its fulfillment is a necessary predicate to
a 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, "an issue not presented in the district
court will not be addressed for the first time on appeal."
United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989). See
_____________ _____ ___
also United States v. Fox, 889 F.2d 357, 359 (1st Cir. 1989);
____ ______________ ___
United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir. 1987);
_____________ ________
United States v. Argentine, 814 F.2d 783, 791 (1st Cir. 1987).
______________ _________
An appellate court nevertheless has the discretionary power, in
an exceptional case, to resolve an issue not passed on below.
Singleton v. Wulff, 428 U.S. 106, 121 (1976). See United States
_________ _____ ___ _____________
4
v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990); United States
__________ _____________
v. Krynicki, 689 F.2d 289 (1st Cir. 1982). Although the discre-
________
tionary appellate power to consider an unpreserved issue should
be exercised sparingly, La Guardia, 902 F.2d at 1013, it is
___________
appropriately invoked if "'injustice might otherwise result.'"
Singleton, 428 U.S. at 121 (quoting Hormel v. Helvering, 312 U.S.
_________ ______ _________
552, 557 (1941)).
The issue belatedly raised on appeal exhibits charac-
teristics which we have considered sufficiently exceptional to
warrant appellate review in other cases. 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 Krynicki, 689 F.2d at 291; see also La Guardia, 902 F.2d at
___ ________ ___ ____ __________
1013. Moreover, due to the nature of the breach, the only
question remaining is the appropriate remedy. See Krynicki, 689
___ ________
F.2d at 292; see also La Guardia, 902 F.2d 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 at 1013, and, most
___ ____ ___________
importantly, it might well result in a miscarriage of justice in
the present case. See Singleton, 428 U.S. at 121; La Guardia,
___ _________ __________
902 F.2d at 1013; Krynicki, 689 F.2d at 292.
________
There is no conceivable basis for concluding that the
government's promise to recommend a sentence within the GSR was
not a significant factor in inducing appellant's plea. See
___
Correale, 479 F.2d at 947. Moreover, the material misstatement
________
5
in the PSR that the government would make no sentencing
recommendation may well have misled the district court to
believe that the government was under no duty to recommend a
__ ____
sentence within the GSR. In these circumstances, we are not
prepared to assume either that the government's commitment to
recommend a sentence within the GSR was a matter of no signifi-
cance in obtaining appellant's guilty plea, see id., or that the
___ ___
court would not have given serious consideration to the govern-
ment's sentencing recommendation had it been made. Thus, we
cannot exclude all likelihood that appellant's waiver of consti-
tutional rights lacked the requisite voluntariness, see Correale,
___ ________
479 F.2d at 947, or that our failure to address the issue would
result in a miscarriage of justice. 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 a core provision in the plea
agreement, requiring the government to recommend a sentence
within the GSR, must be remedied.3 Normally, a plea bargain
breach by the government may be remedied either through specific
performance of the unperformed provision or by allowing the
defendant to withdraw the plea and proceed to trial. Kingsley v.
________
United States, 968 F.2d 109, 133 (1st Cir. 1992); United States
_____________ _____________
v. Canada, 960 F.2d 263, 271 (1st Cir. 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, a
________
court must exercise its 'sound discretion . . . under the circum-
stances of each case.' . . . Specific performance, the less
extreme remedy, is preferred." Kingsley, 968 F.2d at 113 (cita-
________
tions 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 misapprehends the nature of the
breach,4 appellant's request for "resentencing with the express
instruction that appellant be sentenced within the [GSR]" indi-
cates appellant's preference for specific performance, rather
than withdrawal of the plea. Moreover, the choice of remedy
rests with the court, not with the defendant. Kingsley, 968 F.2d
________
at 113; Canada, 960 F.2d at 271. As specific performance would
______
not 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 a 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
Document Info
Docket Number： 92-1483
Filed Date： 11/23/1992
Precedential Status： Precedential
Modified Date： 3/3/2016