United States v. Velez-Carrero

• Court: Court of Appeals for the First Circuit
• Decided: April 3, 1998
• Docket: 97-1410
• Status: Published

Opinion

USCA1 Opinion

                  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT



                    _________________________


No. 97-1410


UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                      MOISES VELEZ CARRERO,



                      Defendant, Appellant.



                    _________________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



        [Hon. Juan M. Perez-Gimenez, U.S. District Judge]



                    _________________________



                              Before



                     Torruella, Chief Judge,



                 Campbell, Senior Circuit Judge,



                    and Selya, Circuit Judge.



                    _________________________



     Frank D. Inserni, by appointment of the court, for appellant.

     Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom

Guillermo Gil, United States Attorney, and Nelson Perez-Sosa,

Assistant United States Attorney, were on brief, for appellee.



                    _________________________



                         April 3, 1998



                    _________________________  SELYA, Circuit Judge.  Defendant-appellant Moises Velez

Carrero comes before us for the second time.  See United States v.

Velez Carrero, 77 F.3d 11 (1st Cir. 1996) (Velez I).  On this

occasion, he remarks the district court's refusal to set aside his

guilty plea and invites us to reverse its order.  Because "[h]aving

one's cake and eating it, too, is not in fashion in this circuit,"

United States v. Tierney, 760 F.2d 382, 388 (1st Cir. 1985), we

decline the invitation.

                                I.

  A grand jury indicted the appellant in 1994 in connection

with a conspiracy to possess and distribute cocaine.  He entered

into a plea agreement (the Agreement) whereby, in exchange for his

admission of guilt, the government promised, among other things, to

recommend that no upward adjustment be made to his base offense

level (BOL) for his role in the criminal activity.  See USSG 3B1.1

(authorizing upward adjustment of a defendant's BOL if the

defendant, in carrying out the offense of conviction, served as "an

organizer, leader, manager, or supervisor").  The government failed

to keep its end of the bargain: rather than affirmatively

suggesting to the district court that no role-in-the-offense

enhancement was warranted, the prosecutor simply took no position

at the disposition hearing as to the appropriateness of such an

adjustment.

  Unnerved by this fecklessness, the appellant asked us to

review the matter and requested that we vacate his 87-month

sentence and order specific performance of the Agreement's terms. 

We determined that the government had breached the Agreement,

granted the appellant the form of relief that he sought, and

remanded for resentencing before a different judge.  See Velez I,

77 F.3d at 12.

                               II.

  On remand, Judge Perez-Gimenez inherited the case and

allowed the appellant's attorney to withdraw.  On two subsequent

occasions, the judge appointed successor counsel, but each of those

counsel also moved to withdraw.  Eventually, the district court

appointed yet a fourth lawyer to represent the appellant.  By then,

the appellant had begun to express an interest in changing his

plea, and his newly designated attorney followed the appellant's

lead.  He struck out in a new direction, moving to set aside the

appellant's guilty plea on the ground that the plea itself had been

tainted by the government's breach of the Agreement.

  The district court wrote a thoughtful rescript denying

the motion.  See United States v. Velez Carrero, No. 94-199 (D.P.R.

Jan. 30, 1997) (Velez II).  After the appellant unsuccessfully

moved for reconsideration, the lower court sentenced the appellant

to a 71-month incarcerative term   a sentence within the guideline

sentencing range, unaugmented by any role-in-the-offense

enhancement.  This appeal followed.

                               III.

  We review a district court's denial of a motion to

withdraw a guilty plea, made prior to sentencing, for abuse of

discretion.  See United States v. Parrilla-Tirado, 22 F.3d 368, 371

(1st Cir. 1994).  We discern no abuse in this instance.

  Judge Perez-Gimenez set forth the correct legal regime

for determining whether to allow the withdrawal of a guilty plea,

see Velez II, slip op. at 3-4, and he meticulously appraised the

appellant's case in light of those criteria, see id. at 4-7.  No

useful purpose would be served by repastinating that well-ploughed

soil.  After all, "when a lower court produces a comprehensive,

well-reasoned decision, an appellate court should refrain from

writing at length to no other end than to hear its own words

resonate."  Lawton v. State Mut. Life Assurance Co. of Am., 101

F.3d 218, 220 (1st Cir. 1996).  Hence, we affirm the district

court's order for substantially the reasons set forth in its

rescript, adding only four brief comments.

  First:  It is an indispensable prerequisite to a plea-

withdrawal motion, made before the imposition of sentence, that the

defendant proffer a fair and just reason for wishing to scrap his

guilty plea.  See Fed. R. Crim. P. 32(e); see also United States v.

Doyle, 981 F.2d 591, 594 (1st Cir. 1992).  The record in this case

indicates quite clearly that the prime motivation behind the

appellant's request to withdraw his plea is that, in his words,

"the government broke its part of the bargain."  Appellant's Motion

to Reconsider at 2.  But the appellant has received precisely the

anodyne that he himself specified to mend that broken promise, and

he is not entitled to further relief in consequence of it.

  When the prosecution fails to adhere to the terms of a

plea agreement, the aggrieved defendant is entitled to either

specific performance of the agreement or an opportunity to retract

his plea.  See Santobello v. New York, 404 U.S. 257, 263 (1971);

Velez I, 77 F.3d at 12.  He is not entitled to both.  Here, Velez

Carrero made an informed choice, requesting during his first appeal

that we order the government to fulfill its promise.   See Velez I,

77 F.3d at 12.  We granted him the precise relief that he had

requested.  See id.  Having obtained his chosen remedy, the

appellant's current reliance on the broken promise as a

justification for retracting his guilty plea is an empty gesture. 

Accordingly, he has failed to proffer a fair and just reason that

would warrant setting aside his plea.

  Second:  We also believe that the appellant's

afterthought request for withdrawal of his plea is precluded by his

prior (successful) appeal.  In Velez I, 77 F.3d at 12, we ordered

the appellant resentenced pursuant to the Agreement.  On remand,

the sentencing court was duty bound to follow our mandate.  SeeUnited States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)

(explicating the mandate rule and describing it as "a specific

application of the law of the case doctrine"); United States v.

Rivera-Martinez, 931 F.2d 148, 150 (1st Cir. 1991) ("When a case is

appealed and remanded, the decision of the appellate court

establishes the law of the case and it must be followed by the

trial court on remand.") (quoting 1B J. Moore, J. Lucas, & T.

Currier, Moore's Federal Practice  0.404[1] (2d ed. 1991)).

  Of course, notwithstanding the mandate rule and the law

of the case doctrine, an issue may be reopened for further

consideration if justice so requires.  See Bell, 988 F.2d at 251. 

But this modicum of residual flexibility does not mean that

preclusion can (or should) lightly be brushed aside.  See Rivera-

Martinez, 931 F.2d at 151.  In this case, the appellant did not

give the district court any plausible reason for revisiting the

Velez I resentencing determination, and he likewise offers none to

us.  Indeed, he does not even suggest that circumstances have

changed in any material respect since the date we decided Velez I. 

Certainly, the mere fact that the appellant has a new lawyer who

has a somewhat different strategic vision is not, in itself, a

material change in circumstances.

     Third:  Just as the companion doctrines of judicial

estoppel and election of remedies preclude parties in civil

litigation from asserting legal or factual positions  inconsistent

with the positions that they took in prior proceedings, see, e.g.,

Gens v. Resolution Trust Corp., 112 F.3d 569, 572 (1st Cir.), cert.denied, 118 S. Ct. 335 (1997), so, too, a criminal defendant

ordinarily must raise claims in a timely fashion, consistent with

his prior positions in the case, or suffer the consequences.  See,

e.g., United States v. Coady, 809 F.2d 119, 121 (1st Cir. 1987). 

During his first appeal, Velez Carrero successfully maintained that

the Agreement should be specifically enforced; now, he asserts that

it should be annulled.  Such an arbitrary about-face cannot be

countenanced.

     Plea agreements are construed in most respects according

to principles of contract law, see United States v. Hogan, 862 F.2d

386, 388 (1st Cir. 1988), and that body of law includes the

election-of-remedies principle, see Jones v. Childers, 18 F.3d 899,

915 (11th Cir. 1994).  In the realm of commercial contracts, "[a]

party may not invoke (or at least may not be granted) a remedy

based upon affirmance of a contract . . . and also a remedy based

upon disaffirmance, such as recission."  Continental Sand & Gravel,

Inc. v. K & K Sand & Gravel, Inc., 755 F.2d 87, 93 (7th Cir. 1985);

accord Far West Fed. Bank v. Office of Thrift Supervision, 119 F.3d

1358, 1365 (9th Cir. 1994).  It follows that, absent a showing of

special circumstances, a criminal defendant ought properly to be

precluded from pursuing a remedy which, in a previous iteration of

the case, he eschewed in favor of a different (and inconsistent)

remedy.  See United States v. Thomas, 709 F.2d 968, 971 (5th Cir.

1983).

     Fourth:  The appellant's counsel, both in his appellate

brief and at oral argument, made glancing references to the

district court's order of November 29, 1996, in which the court

refused to direct the Bureau of Prisons and/or the Marshals Service

to restore certain of the appellant's belongings to him.  This

point is procedurally defaulted twice over.

     For one thing, there is no specific reference to the

November 29 order in appellant's notice of appeal.  That omission,

in itself, is fatal.  See Fed R. App. P. 3(c) (stating that the

notice of appeal must designate the challenged orders or

judgments); see also Kotler v. American Tobacco Co., 981 F.2d 7, 11

(1st Cir. 1992).  For another thing, the appellant's unhappiness

with the November 29 order is mentioned only in passing in his

brief, with no attempt at developed argumentation.  Accordingly, it

is not properly before us.  See United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990) (memorializing "the settled appellate rule

that issues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived").  In

any event, the appellant has not shown, or even intimated, how that

order prejudiced him in regard to the attempted withdrawal of his

plea.  Thus, we need go no further.



Affirmed.