     06-2919-cr
     United States v. Liriano-Blanco

1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2007

4    (Argued: September 5, 2007             Decided: December 11, 2007
5                                           Errata Filed: January 2, 2008)
6                              Docket No. 06-2919-cr

7                    -------------------------------------

8                            UNITED STATES OF AMERICA,

9                                      Appellee,

10                                       - v -

11                             ARIEL LIRIANO-BLANCO,

12                              Defendant-Appellant.

13                   -------------------------------------

14   Before:     WALKER, CALABRESI, and SACK, Circuit Judges.

15               Appeal by the defendant from a judgment of conviction

16   and sentence in the United States District Court for the Northern

17   District of New York (Thomas J. McAvoy, Judge).       Upon the

18   defendant's plea of guilty pursuant to a plea agreement, which

19   included an appeal waiver by the defendant, to unlawfully

20   entering the United States in violation of 8 U.S.C. § 1326(a) and

21   (b)(2), the district judge declined to impose a non-Guidelines

22   sentence, because he thought that doing so was likely prohibited

23   by law.   The court was, at the time of sentencing, under a

24   misimpression as to the defendant's ability to appeal his

25   sentence, which may have affected the severity of the sentence

26   that the court imposed.
1              Remanded in order to give the district court the

2    opportunity to reconsider the sentence.

3                             CRAIG M. CRIST, Dreyer Boyajian LLP,
4                             Albany, NY, for Defendant-Appellant.

 5                            BRENDA K. SANNES, Assistant United
 6                            States Attorney (Edward P. Grogan,
 7                            Assistant United States Attorney, of
 8                            counsel), for Glenn T. Suddaby, United
 9                            States Attorney for the Northern
10                            District of New York, Syracuse, NY, for
11                            Appellee.

12   SACK, Circuit Judge:

13             On its face, this appeal raises the question of the

14   authority of a district court to sentence a defendant below the

15   range provided by the United States Sentencing Guidelines (the

16   "Guidelines") when so-called "fast-track" downward departures are

17   not available in the district.   We cannot, however, reach the

18   substance of this issue, because, we conclude, the waiver of

19   appeal included in the plea agreement of the defendant, Ariel

20   Liriano-Blanco, is effective and bars us from doing so.

21   Nevertheless, because the district court appears to have

22   determined the sentence based, in part, on its misimpression,

23   uncorrected by the government, that he could appeal his sentence

24   to us, and because that misimpression may have affected the

25   severity of the sentence that the court imposed, we remand to the

26   district court to provide it with an opportunity to reconsider.

27                             BACKGROUND

28             On December 16, 2005, Liriano-Blanco entered this

29   country illegally by walking from Canada to the United States at


                                      2
1    an unauthorized border crossing at or near Champlain, New York.

2    His movements were detected by an intrusion device, which

3    notified the United States Border Patrol.    A member of the Border

4    Patrol effected Liriano-Blanco's arrest.

5               On December 22, 2005, Liriano-Blanco was indicted in

6    the United States District Court for the Northern District of New

7    York on one count of unlawfully attempting to re-enter the United

8    States after being previously removed from the country following

9    his conviction of an aggravated felony, in violation of 8 U.S.C.

10   § 1326(a) and (b)(2).   On February 6, 2006, Liriano-Blanco

11   entered into a plea agreement with the government.     In it, he

12   agreed, inter alia, to plead guilty to various charges against

13   him and to waive the right to appeal any sentence of sixty months

14   or less.

15              On the same day, the district court (Thomas J. McAvoy,

16   Judge) held a video-conference plea hearing.1    During the plea

17   colloquy, the court specifically addressed the appeal waiver

18   contained in the plea agreement, asking whether Liriano-Blanco

19   agreed to give up the right of appeal for any sentence of 60

20   months or less, whether he did so voluntarily, and whether he

21   understood the waiver when he agreed to it.     Liriano-Blanco

22   answered "yes" to each of these questions.    Tr. of Plea Hearing,




          1
             The district judge was in Binghamton, New York, while
     Liriano-Blanco and counsel for him and for the government were in
     Albany. Tr. of Plea Proceeding, Feb. 6, 2006.

                                      3
1    Feb. 6, 2006, at 15-17.   The court then accepted Liriano-Blanco's

2    guilty plea.

3              The Fast-Track Program

4              Underlying the sentencing issues the district court

5    then faced was the existence of the "early disposition," or

6    "fast-track," federal sentencing program.    The program has

7    existed since 2003 when Congress "instructed the United States

8    Sentencing Commission to issue a policy statement authorizing a

9    downward departure pursuant to an early disposition program

10   authorized by the Attorney General."    United States v. Mejia, 461

11   F.3d 158, 160 (2d Cir. 2006) (citations and internal quotation

12   marks omitted).

13             As directed by Congress, the Sentencing
14             Commission adopted U.S.S.G. § 5K3.1 . . .
15             which provides that, "[u]pon motion of the
16             Government, the court may depart downward not
17             more than 4 levels pursuant to an early
18             disposition program authorized by the
19             Attorney General of the United States and the
20             United States Attorney for the district in
21             which the court resides.

22   Id. at 161 (emphasis added).    At last count, the fast-track

23   program was in force in thirteen of the ninety-four federal

24   districts:   Arizona; California (Central, Southern, Eastern, and

25   Northern districts); Idaho; Nebraska; New Mexico; North Dakota;

26   Oregon; Texas (Southern and Western districts); and the Western

27   District of Washington.   Id.   The fast-track program is not in

28   effect in the Northern District of New York.

29             Sentencing of Liriano-Blanco



                                        4
1               The parties and the probation office made written

2    submissions to the district court with regard to Liriano-Blanco's

3    sentencing.   The Probation Office calculated the Guidelines range

4    to be 57 to 71 months, based upon an offense level of 8, under

5    U.S.S.G. § 2L1.2(a), a 16 level enhancement under § U.S.S.G. §

6    2L1.2(b)(1)(A)(I) based upon Liriano-Blanco’s prior felony

7    conviction, and a criminal history category of IV.   Liriano-

8    Blanco argued, however, that a non-Guidelines sentence was

9    available and should be imposed "to avoid the disparity caused by

10   the existence of fast-track programs in other districts."     Def.'s

11   Sentencing Mem., dated April 26, 2005 [sic], at Point II.A.

12              On May 8, 2006, some three months after Liriano-

13   Blanco's plea hearing, the district court conducted a brief

14   sentencing hearing.   The court commented generally on non-

15   Guidelines sentencing in the district courts in illegal-reentry

16   cases.   The court concluded:

17              [I]nstead of sentencing you today, we're
18              gonna look into those things, we're gonna
19              examine the new case law, I'm gonna take
20              under advisement the things I'm telling you
21              about today and then, fairly quickly,
22              hopefully within a couple weeks, we'll bring
23              you back and I'll hear arguments and I'll
24              sentence [you].

25   Tr. of Sentencing Hearing, May 8, 2006, at 6.   The court made no

26   mention of the possibility of an appeal or of the appeal waiver

27   that was in force.

28              The sentencing hearing was reconvened on June 13, 2006.

29    At the outset, the district court said:


                                      5
1              No matter which way I go in this case, . . . I am
2              gonna offer the other side a certificate of
3              appealability, so I will immediately sign
4              it. . . .[2] I would like to see what the Second
5              Circuit says about it. I know what other courts
6              and other Circuits say, but I would like guidance
7              from a non-Fast Track circuit.

8    Tr. of Sentencing Hearing, June 13, 2006, at 9.

9              The court then entertained argument from both sides.

10   Most of the discussion was about the disparity between the

11   Guidelines sentence for Liriano-Blanco and the lower Guidelines

12   sentence that would have been available to him had he crossed the

13   border into one of the fast-track jurisdictions instead of the

14   Northern District of New York.

15             Toward the end of the proceeding, the court expanded on

16   its introductory remarks about sentencing disparities and the

17   fast-track program.

18             Now, if I thought I could follow my own
19             individual predilections, if I could follow
20             my emotions and my heart, I would go down
21             four levels and say I'm gonna sentence him
22             there. But I don't think I can do
23             that. . . . That's what I did [when I sat by
24             designation] in Laredo, [Texas,] on two
25             separate occasions, and in Midland, [Texas,]
26             because they have the Fast Track Program.
27             Here, we don't have it. It does cause
28             disparity, but I think it is important that


          2
             We are not quite certain what the district court meant by
     "a certificate of appealability." Ordinarily, we use the term to
     refer to the certificate granted by a district court, circuit
     judge, or a justice that permits a person whose petition or
     application for habeas corpus relief has been denied by the
     district court to appeal it to the court of appeals. See, e.g.,
     28 U.S.C. § 2253(c); Lozada v. United States, 107 F.3d 1011,
     1015-16 (2d Cir. 1997), abrogated on other grounds by United
     States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997).

                                      6
1               Congress did incorporate that into The
2               [PROTECT] Act, and I think the First Circuit
3               made that call and was persuaded by that
4               precedent. I am persuaded by the way they
5               arrived at that.

6    Id. at 22-23.    The district court then found Liriano-Blanco’s

7    offense level to be 21, and granted a departure from the

8    recommended criminal history level of IV to a category III.      The

9    court calculated the resulting range to be 46 to 57 months and

10   sentenced Liriano-Blanco to a term of 46 months.

11              Shortly thereafter, the district court returned to the

12   issue of a possible appeal.    "Hopefully, maybe, the Second

13   Circuit may disagree with me and be able to give a lesser

14   sentence when they send it back, but I don't know."    Id. at 26-

15   27.   "Both you [referring to Liriano-Blanco] and the Government

16   have the right to appeal this sentence under certain

17   circumstances.    And the Court has already indicated it would

18   issue, if applied for, a certificate of appealability."    Id. at

19   28.   The court told Liriano-Blanco, finally, that he was required

20   "to file any appeal [he] . . . plan[ned] to take within 10 days

21   of the date of th[e] sentence."    Id.

22              In fact, of course, Liriano-Blanco had consented to an

23   appeal waiver as part of his plea agreement.    No one present

24   corrected the district court's misimpression, despite the fact

25   that the court referred to its expectation of an appeal

26   repeatedly, and the possibility of an appeal appeared to be an

27   integral part of the judge's reasoning in arriving at a

28   sentencing decision.

                                       7
1              Liriano-Blanco's Appeal

2              On June 20, 2006, Liriano-Blanco filed a notice of

3    appeal.   On October 6, 2006, after his efforts to consolidate the

4    appeal with that of one José Duran-Ferreira -- who had traveled

5    into the United States, and was arrested, with Liriano-Blanco --

6    had failed, he filed his brief.

7              In the interim, on August 22, 2006, we decided Mejia.

8    We concluded:    "We join other circuits in holding that a district

9    court's refusal to adjust a sentence to compensate for the

10   absence of a fast-track program does not make a sentence

11   unreasonable."   Mejia, 461 F.3d at 164.    We did not have before

12   us in Mejia, and did not address, the question presented in

13   Liriano-Blanco's case: whether the district court has the

14   authority to impose a non-Guidelines sentence in response to the

15   fast-track sentencing disparity if it deems such a reduced

16   sentence to be warranted.

17             On October 13, 2006, the government moved to dismiss

18   Liriano-Blanco's appeal on the ground that he had waived his

19   right to appeal in the plea agreement.     On December 22, 2006, a

20   panel of this Court denied the motion.     Our order reads:

21             The Government moves to dismiss defendant-
22             appellant's case on the ground that Liriano-
23             Blanco entered into a clear and enforceable
24             appellate waiver, and that he knowingly and
25             voluntarily acknowledged his waiver of his
26             right to appeal. Upon due consideration, the
27             Government's motion is DENIED. Liriano-
28             Blanco argues that the district court's
29             comments during sentencing regarding the
30             availability of appeal amounted to a de facto


                                       8
1               striking and/or rejection of the appeal
2               waiver as contained in the plea agreement.
3               We have not addressed precisely this issue.
4               Cf. United States v. Fisher, 232 F.3d 301,
5               304 (2d Cir. 2000).

6    United States v. Liriano-Blanco, 2d Cir., No. 06-2919-cr, Order

7    dated Dec. 22, 2006.3

8                                 DISCUSSION

9               We note at the outset that if Liriano-Blanco were able

10   to lodge an appeal challenging the district court's perception of

11   its power to issue downward departures without fast-track

12   authorization, such an appeal would not be frivolous.    Although

13   we concluded in United States v. Mejia that a sentencing court is

14   not required to account for the fast-track disparity by imposing

15   a non-Guidelines sentence, Mejia, 461 F.3d at 164, we did not

16   foreclose the possibility that a court has the legal authority to

17   impose, in its discretion, a non-Guidelines sentence on that

18   basis.   Perhaps it does not, under an extension of the Mejia

19   rationale or otherwise.   But the answer to that question is not a

20   foregone conclusion.    The issue for us now, therefore, is whether

21   we can reach this question despite the appeal waiver to which

22   Liriano-Blanco consented as part of his plea agreement.




          3
             Meanwhile, this Court ordered counsel for Duran-Ferreira
     to respond to the government's similar motion to dismiss Duran-
     Ferreira's appeal. Our order in Liriano-Blanco was not brought
     to the attention of the panel to which the motion was assigned.
     The motion to dismiss was granted by another panel on February,
     16, 2007. United States v. Duran-Ferreira, 2d Cir., No. 06-3003-
     cr, Order dated Feb. 16, 2007.

                                       9
1              "Plea agreements that include a waiver of a defendant's

2    right to appeal his conviction and sentence are a relatively

3    recent phenomenon.    This Court has repeatedly upheld the validity

4    of such waivers, with the obvious caveat that such waivers must

5    always be knowingly, voluntarily, and competently provided by the

6    defendant."    United States v. Gomez-Perez, 215 F.3d 315, 318 (2d

7    Cir. 2000) (citing cases).    We have assumed that we have the

8    power to examine the circumstances surrounding the plea agreement

9    to assure ourselves that these conditions are met.    See id.

10             Liriano-Blanco does not dispute, however, that he

11   entered his plea agreement knowingly, voluntarily, and

12   competently.    What he does challenge is the validity of that

13   agreement in light of the district court's stated assumption that

14   he did have a right to appeal.

15             Under Federal Rule of Criminal Procedure 32(j)(1)(B),

16   "[a]fter sentencing--regardless of the defendant's plea--the

17   court must advise the defendant of any right to appeal the

18   sentence."    But "'Congress seems to have understood'" -- indeed

19   it is difficult to believe it did not understand -- "'that advice

20   as to a right to appeal a sentence need be given only when such a

21   right exists.    [And a] right might not exist either because it

22   was never created in the first place, or because it was created

23   and then waived.'"    United States v. Fisher, 232 F.3d 301, 303

24   (2d Cir. 2000) (quoting United States v. Tang, 214 F.3d 365, 369

25   (2d Cir. 2000)).    Indeed, Tang urged sentencing judges "not to

26   give 'unqualified advice concerning a right to appeal'" in "cases

                                      10
1    where a waiver of appellate rights is of the type we have ruled

2    enforceable and [said wavier] has been fully explained to the

3    defendant at the time of the plea."    Id. at 303 (quoting Tang,

4    214 F.3d at 370).

5              It is, nonetheless, not uncommon for a district judge

6    to notify a defendant at sentencing of his or her right to

7    appeal, momentarily unaware that that right has been waived.

8    This may result from Rule 32(j)(1)(B)'s requirement of notice

9    coupled with the fact that the waiver of appeal contained in a

10   plea agreement may be of little or no relevance to the sentencing

11   proceeding.   And the time that usually elapses between a plea

12   hearing and sentencing -- in this case, more than three months --

13   makes such an error all the more likely.    Cf. id. at 302

14   (observing that "[s]ome four months" elapsed between the district

15   court's taking of the guilty plea, at which it discussed the

16   appeal waiver, and the sentencing hearing, at which it mistakenly

17   advised the defendant of his right to appeal).

18             As a general matter, however, "a district judge's

19   post-sentencing advice suggesting, or even stating, that the

20   defendant may appeal" does not "render[] ineffective" an

21   "otherwise enforceable waiver of appellate rights."    Id. at 304

22   (concurring with the conclusion of the Fifth, Seventh, Eighth,

23   and Tenth Circuits).   "If enforceable when entered, the waiver

24   does not lose its effectiveness because the district judge gives

25   the defendant post-sentence advice inconsistent with the waiver."

26   Id. at 304-05 (footnote omitted).    In Fisher, as in this case,

                                     11
1    "[n]o justifiable reliance has been placed [by the defendant] on

2    such advice."   Id. at 305.

3              Liriano-Blanco's appeal waiver is therefore effective

4    to bar his appeal of the district court's conclusion that a non-

5    Guidelines sentence is unavailable despite the "fast track"

6    disparity.

7              That is not the end of the matter, however.    Our

8    concern regarding mistaken statements by a sentencing judge about

9    the defendant's right to appeal has typically focused on the

10   possibility that such bad advice may "'precipitate some needless

11   appeals,'" id. at 303 (quoting Tang, 214 F.3d at 370).    Perhaps

12   there has been concern, too, about false expectations of the

13   possibility of appeal engendered in those who are being

14   sentenced.   In this case, however, there is more at stake than

15   unnecessary proceedings and false hope.    The mistake as to

16   Liriano-Blanco's right to appeal may have directly affected the

17   length of the sentence imposed on him.    The court explicitly

18   expressed its view that a more lenient sentence might be

19   appropriate but that it harbored doubts about whether under the

20   applicable law it could impose that sentence.    The court then

21   chose not to depart from the Guidelines and imposed a sentence of

22   46 months.   The district court relied on the possibility of

23   appeal in choosing the higher sentence, apparently unaware that

24   Liriano-Blanco had waived the ability to pursue such an appeal.

25             Heightening our concern in Liriano-Blanco's case is the

26   fact that, notwithstanding his awareness of this reliance, the

                                     12
1    Assistant United States Attorney who appeared at Liriano-Blanco's

2    sentencing did nothing to disabuse the district court of its

3    misapprehension that an appeal by Liriano-Blanco remained

4    possible.    In at least two of the cases in which we have

5    discussed the obligation of district courts to advise defendants

6    of their right to appeal, we have noted prosecutors' obligations

7    at sentencing under a plea agreement containing an appeal waiver.

8    As we said in Fisher:

 9               We will continue to expect prosecutors to
10               alert district judges at sentencing to the
11               existence of appellate waivers, see Tang, 214
12               F.3d at 370, both to provide an opportunity
13               to clarify any ambiguity as to the scope of
14               such waivers, and to afford district judges
15               an opportunity to fashion any advice
16               concerning possible appellate rights in light
17               of the terms of the waiver.
18   Fisher, 232 F.3d at 305.    Our cases have not imposed the same

19   duty on defense counsel, and we have never suggested that the

20   silent presence of defense counsel excuses the government's

21   counsel's failure to speak up under these circumstances.4




          4
             That may reflect "the special role played by the American
     prosecutor . . . ." Strickler v. Greene, 527 U.S. 263, 281
     (1999) ("[T]he United States Attorney is 'the representative not
     of an ordinary party to a controversy, but of a sovereignty whose
     obligation to govern impartially is as compelling as its
     obligation to govern at all; and whose interest, therefore, in a
     criminal prosecution is not that it shall win a case, but that
     justice shall be done.'" (quoting Berger v. United States, 295
     U.S. 78, 88 (1935))). It may also be deemed preferable not to
     require defense counsel, who may one day challenge an appeal
     waiver, to acknowledge the waiver's effect in open court, but
     instead place responsibility for acknowledging the existence of
     an appeal waiver on the party that intends to enforce it.

                                      13
1               Plea agreements are generally treated as contracts.

2    Matters outside of the bargain between the parties are not

3    covered.   In past cases we have thus held that despite a plea

4    agreement, a sentencing decision could be reviewed on appeal if

5    it was reached in a manner that the plea agreement did not

6    anticipate.   In United States v. Yemitan, 70 F.3d 746 (2d Cir.

7    1995), for example, we held that "a sentence tainted by racial

8    bias could not be supported on contract principles, since neither

9    party can be deemed to have accepted such a risk or be entitled

10   to such a result as a benefit of the bargain."   Id. at 748.

11   Along these lines, we think, Liriano-Blanco cannot be "deemed to

12   have accepted [the] risk" that the judge sentencing him would do

13   so based on the judge's mistaken impression that his sentencing

14   decision could be appealed.   Although we cannot decide Liriano-

15   Blanco's appeal on the merits, then, we conclude that the waiver

16   does not explicitly or implicitly bar us from returning this

17   matter to the district court, so that, having been made aware

18   that Lirirano-Blanco cannot appeal its decision, it may

19   resentence him if it sees fit to do so.

20              We do not know what the district court might have done

21   had it been corrected at the time of sentencing as to its

22   mistaken view that Liriano-Blanco was entitled to appeal the

23   decision of law upon which the court based the sentence.    While

24   we will not suggest in advance our views on a matter not before

25   us, we do note, as we did at oral argument, the possibility that

26   if the court had departed from the Guidelines range and imposed a

                                     14
1    sentence below 46 months, and left it to the government, not

2    Liriano-Blanco, to appeal, that could have provided a means for

3    the district court to obtain this Court's decision on the

4    unsettled issue which the district court found not only

5    troubling, but perhaps determinative.   We cannot be sure.

6              Rather than guess as to what the district court would

7    have done had it been informed of the appeal waiver, we remand

8    the case to the district court for it to reconsider what further

9    steps, if any, it thinks warranted in light of Liriano-Blanco's

10   inability to appeal from the court's ruling.

11                              CONCLUSION

12             For the reasons stated above, the district court’s

13   sentence is reversed and the case remanded for further

14   consideration of the matter in accordance with this opinion.




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