          United States Court of Appeals
                     For the First Circuit

No. 16-1690

                         UNITED STATES,

                            Appellee,

                               v.

                        KENNY O. PACHECO,

                      Defendant, Appellant.


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

     [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]


                             Before

                     Kayatta, Circuit Judge,
                   Souter, Associate Justice,
                    and Selya, Circuit Judge.


     Jean C. LaRocque on brief for appellant.
     Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, and Francisco
A. Besosa-Martínez, Assistant United States Attorney, on brief for
appellee.


                          April 5, 2019


	


     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
              SOUTER,      Associate Justice.          Defendant Kenny Pacheco

pleaded guilty to conspiracy under the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1962(d), and to using or

carrying a firearm during and in relation to a drug trafficking

crime, 18 U.S.C. § 924(c)(1)(A).                  The District Court imposed

consecutive sentences of 70 months in prison on the first offense

and 60 months on the second.               On appeal, Pacheco argues that his

firearms conviction and sentence duplicate his prior conviction

and sentence for a firearms offense under Puerto Rico law, and

thus      violate    the    Fifth      Amendment's    guarantee   against    double

jeopardy.

              We conclude that the record as presented here does not

permit evaluation of Pacheco's double jeopardy claim, containing

as   it    does     only    the   untranslated,       Spanish-language     judicial

documentation of the Puerto Rico firearms conviction.                       This is

inadequate by the terms of the Jones Act, 48 U.S.C. § 864, which

prohibits federal courts from considering untranslated documents.

We accordingly dismiss the appeal, but we do so without prejudice

to Pacheco's right to raise his double jeopardy claim on the basis

of translated records in future, collateral-review proceedings.

                                            I

              Before reaching the difficulty with the double jeopardy

claim,      however,       we   must    resolve   a   threshold   issue:    whether




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Pacheco's plea agreement waiving his right to appeal in some

circumstances bars the claim on appeal.         We conclude it does not.

           A waiver of appellate rights is enforceable provided

that, among other things, the defendant "enter[ed] into the waiver

'knowingly and voluntarily.'"       Sotirion v. United States, 617 F.3d

27, 33 (1st Cir. 2010) (quoting United States v. Teeter, 257 F.3d

14, 24 (1st Cir. 2001)).       The "text of the written plea agreement

and the change-of-plea colloquy are of critical importance" to the

necessary enquiry, id.: a waiver may be treated as knowing and

voluntary if the written plea agreement "clearly delineates the

scope of the waiver," United States v. González-Colón, 582 F.3d

124, 127 (1st Cir. 2009), and if the change-of-plea colloquy shows

that "the district court specifically inquired . . . about the

waiver" by "questioning of the defendant" sufficient to establish

"that the waiver was knowing and voluntary," id., with respect to

any subsequently contested scope.

           The appeal waiver in Pacheco's plea agreement provided

that he "knowingly and voluntarily waives the right to appeal the

judgment and sentence in this case, provided that [he] is sentenced

in accordance with the terms and conditions set forth in the

Sentence Recommendation provisions of this Plea Agreement."             Plea

Agreement ¶ 9.     If our enquiry ended there, the absence of any

dispute   that   the   total   of   Pacheco's   two   sentences   was   "in

accordance with the[se] terms and conditions" would point to an


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effective knowing and voluntary waiver of the right to appeal the

ensuing judgment and sentence actually imposed.

          As just explained, however, reference to the text does

not mark the end of the enquiry, for we also look to the change-

of-plea colloquy.   Teeter, 257 F.3d at 24.   At Pacheco's colloquy,

the judge detailed the scope of Pacheco's waiver:     "There may be

a waiver of appeal in your particular Plea Agreements, but there

is always the possibility of the right to appeal if a sentence is

imposed illegally."   Change-of-Plea Tr. 31-32.

          In stating that Pacheco could argue on appeal that his

sentence was "imposed illegally," the judge seemed to "contradict

the terms of the written waiver," Sotirion, 617 F.3d at 35, and he

offered no "correction" or modification of that statement during

the rest of the colloquy, Teeter, 257 F.3d at 27.    To be sure, at

a later point, the judge did tell Pacheco that he would be "waiving

[his] right to appeal" if he was "sentenced according to the

stipulations that appear in the Plea Agreement."     Change-of-Plea

Tr. 45.   But the judge never told Pacheco that this subsequent

statement meant that he would be foreclosed from arguing on appeal

that such a sentence was "imposed illegally," id. at 32, or that

a sentence is "imposed illegally" only if it conflicts with "the

stipulations that appear in the Plea Agreement," id. at 32, 45.

          The upshot is that we "cannot say with the requisite

assurance" that Pacheco's surrender of his appellate right "was


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sufficiently informed," Teeter, 257 F.3d at 27, insofar as it would

extend to a sentence characterized as "imposed illegally," as

Pacheco claims of the firearms sentence.     Indeed, in practical

terms, the judge's explanation during the change-of-plea colloquy

instructed Pacheco that his waiver was not as broad as the literal

terms of the written agreement, and that he was not waiving the

right to appeal any element of the subsequent sentence that could

fairly be characterized as an "illegal" imposition. The Government

did not object to the judge's explanation of the limit on the

waiver, and naturally Pacheco had no objection to conceding less

than he originally had bargained for.     At his later sentencing

hearing, Pacheco confirmed his understanding of the scope of his

appeal waiver, making both the court and the Government fully aware

of his position, and there were no objections or clarifications.

He now seeks to enforce the limited scope of his waiver, as it

appears to have been understood by all parties at the conclusion

of the plea colloquy.   Cf. United States v. Gil-Quezada, 445 F.3d

33, 37 & n.3 (1st Cir. 2006) (judge's comments at later disposition

hearing have no bearing on extent of any waiver made at prior plea

hearing but may "shed light upon the defendant's understanding at

that time").1


     1 Although our conclusion is a product of the colloquy at the
change-of-plea hearing, see Gil-Quezada, 445 F.3d at 36-37, we
have noted, as confirmation, that it is a conclusion accepted by
the court and both parties at the later sentencing hearing. There,


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           That is the case here.      Accordingly, the appeal waiver

does not bar Pacheco's double jeopardy claim, which "call[s] into

question the Government's power to 'constitutionally prosecute'

him," Class v. United States, 138 S. Ct. 798, 805 (2018) (quoting

United States v. Broce, 488 U.S. 563, 575 (1989)), as the premise

of his contention that the ensuing sentence was illegally imposed.

                                  II

           Pacheco asserts that his federal firearms conviction

duplicates his Puerto Rico firearms conviction because the federal

conviction does not "require[] proof of a fact" beyond the facts

required for his Puerto Rico conviction.         Blockburger v. United

States, 284 U.S. 299, 304 (1932).          He says that the federal

conviction requires proof that he used or carried a firearm "during

and in relation to any crime of violence or drug trafficking

crime,"   18   U.S.C.   § 924(c)(1)(A),   and   that   his   Puerto   Rico

conviction required proof of the same fact:            Puerto Rico law

provides that the use of an illegal weapon "to commit or attempt


Pacheco's counsel explained that he was "not waiving his
constitutional right to raise [a] double jeopardy claim" on appeal,
Sentencing Hearing Tr. 7, and that he brought the double jeopardy
issue to the District Court's attention so that it would be
"understood to the Court that [he was] not waiving that right,"
id. at 8. The District Court acknowledged counsel's statements
with a one-word answer: "Okay." Id. The Government, meanwhile,
concedes that it did not object to counsel's statements. Appellee
Br. 9. Because our conclusion does not rest on an "unpreserved
Rule 11(b)(1)(N) error," there is no occasion to apply the plain-
error standard of review. United States v. Morillo, 910 F.3d 1,
3 (1st Cir. 2018).


                                 - 6 -
to   commit    any    crime"     is   "an   aggravating        circumstance"    that

increases the statutory maximum punishment.                    25 L.P.R.A. § 458c.

His position thus depends partly on whether he was convicted of

the aggravated version of the Puerto Rico firearms offense.

              When we turn to evaluate the merits of this argument,

however, we hit a roadblock.            We cannot determine whether Pacheco

was convicted of the aggravated version of the Puerto Rico offense

because the record on appeal lacks English-language translations

of the Spanish documentation of that earlier conviction, an absence

that implicates the federal Jones Act.

              The    Jones     Act    provides    that     all    "pleadings     and

proceedings in the United States District Court for the District

of Puerto Rico shall be conducted in the English language," 48

U.S.C. § 864, and one consequence of the requirement that all

"federal court proceedings must be conducted in English," United

States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir. 2002), is that

"federal   judges      must    not    consider    any    untranslated    documents

placed before them," United States v. Millán-Isaac, 749 F.3d 57,

64 (1st Cir. 2014).          As relevant here, that rule prohibits federal

courts from considering any untranslated, "Spanish-language copy

of a Puerto Rico judgment of conviction."                United States v. Reyes-

Rivas,   909    F.3d    466,     468,   470     (1st    Cir.    2018).    The   Act

consequently bars us from taking account of the untranslated court

documents bearing on Pacheco's Puerto Rico firearms conviction and


                                        - 7 -
"requires that we set [them] aside" without attempting to render

them into English.    Id. at 470.

           Since the want of a record compliant with the Jones Act

leaves us unable to determine the merits of Pacheco's argument, we

dismiss   his   appeal.   We   take   no   position,   however,   on   the

underlying merits of his claim, and this dismissal is without

prejudice to his right to raise it again in a future, collateral-

review proceeding, as under 28 U.S.C. § 2255.



So ordered.




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