United States v. Mercedes Amparo

• Court: Court of Appeals for the First Circuit
• Decided: November 23, 1992
• Docket: 92-1483
• Status: Published

Opinion

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