          United States Court of Appeals
                      For the First Circuit


No. 18-1150

                      TORIBIO ROJAS-MEDINA,

                      Petitioner, Appellant,

                                v.

                    UNITED STATES OF AMERICA,

                      Respondent, Appellee.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]
        [Hon. Bruce J. McGiverin, U.S. Magistrate Judge]


                              Before

                   Torruella, Selya, and Lynch,
                          Circuit Judges.


     Franco L. Pérez-Redondo, Research & Writing Attorney, with
whom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, were on brief, for petitioner.
     Antonio L. Pérez-Alonso, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for respondent.


                           May 16, 2019
           SELYA, Circuit Judge.    In Roe v. Flores-Ortega, 528 U.S.

470   (2000),   the   Supreme   Court    held   that,   as    a   matter   of

constitutional law, a defense attorney has a duty to consult with

a client about an appeal either when a particular defendant

reasonably demonstrated to the attorney that he was interested in

appealing or when the circumstances are such that a rational

defendant would want to appeal.         See id. at 480.      The Court went

on to hold that when an attorney violates this duty, a presumption

of prejudice arises.    See id. at 483.     The appeal at hand requires

us, for the first time, to apply the Flores-Ortega presumption of

prejudice in circumstances in which the defendant has previously

executed a plea agreement containing a waiver-of-appeal provision.

Mindful of the teachings of both Flores-Ortega and Garza v. Idaho,

139 S. Ct. 738 (2019), we reverse the district court's dismissal

of petitioner-appellant Toribio Rojas-Medina's petition for post-

conviction relief and direct the district court, on remand, to

afford him an appropriate opportunity to file a timely notice of

appeal.

I. BACKGROUND

           The petitioner is a monolingual Spanish speaker who is

a native and citizen of the Dominican Republic.           On November 23,

2015, a federal grand jury sitting in the District of Puerto Rico

returned a three-count indictment charging him with unlawfully

transporting noncitizens (count 1), unlawful reentry into the


                                  - 2 -
United States by a deported noncitizen (count 2), and failure to

heave to a vessel (count 3).        See 8 U.S.C. §§ 1324(a)(1)(A)(i),

1326(b)(1); 18 U.S.C. § 2237(a)(1).         Roughly three months later,

the petitioner entered into a plea agreement (the Agreement),

wherein he agreed to plead guilty to count 2 (unlawful reentry

into the United States by a deported noncitizen).              In exchange,

the government agreed to dismiss the other two counts.                  The

Agreement memorialized, inter alia, the parties' stipulation to a

total offense level (TOL) of 21, but contained no stipulation as

to the petitioner's criminal history category (CHC).

          In   a   section   of   the   Agreement   entitled    "SENTENCING

RECOMMENDATION," the parties agreed that they would "recommend a

sentence at the lower end of the applicable Guideline Sentencing

Range."   The parties further agreed that the petitioner "may

request that [his] sentence run concurrently with any pending state

sentence or state revocation sentence that may be imposed as a

result of the current criminal conduct," and "may also argue for

a downward departure" on the basis "that his [CHC] substantially

overrepresent[ed] the seriousness of [his] criminal conduct or the

likelihood that [he] will commit other crimes."            Of particular

pertinence for present purposes, the Agreement contained a waiver-

of-appeal provision under which the petitioner surrendered the

right to appeal his conviction and sentence, "provided that [he

was] sentenced in accordance with the terms and conditions set


                                   - 3 -
forth       in       the     Sentence     Recommendation         provisions         of     [the

Agreement]."

                 A     probation         officer        prepared         the     presentence

investigation report (PSI Report).                     Consistent with the Agreement,

the probation officer recommended a TOL of 21.                            She assessed the

petitioner eight criminal history points, placing him in CHC IV.

The recommended guideline sentencing range (GSR) was 57 to 71

months.

                 Neither party objected to the guideline calculations

limned in the PSI Report.                The petitioner's then-counsel (whom we

shall call "trial counsel") filed a sentencing memorandum in which

he urged the district court to vary downward and sentence the

petitioner based on a CHC of III.                        Specifically, trial counsel

sought a sentence of 46 months, which fell at the bottom of the

GSR for a TOL of 21 and a CHC of III.                    Trial counsel also requested

that       the   sentence         "run   concurrently       with    any        pending   state

sentence."1

                 Prior       to   sentencing,      a   different     probation       officer

approached           trial    counsel,    told     him    that     the    PSI     Report   had

miscalculated the petitioner's CHC, and said that two additional



       1
       The petitioner committed the current offense while on post-
release supervision in New York. Thus, he was concerned that he
might be subject to additional state prison time if the New York
authorities moved to revoke his supervision due to his federal
offense.


                                            - 4 -
criminal history points would be added.               These additional points

served to elevate the petitioner from CHC IV to CHC V.

               The district court convened the disposition hearing on

May 13, 2016.          The court asked trial counsel whether he needed

additional time to prepare, given the change in the probation

officer's CHC calculation.          Trial counsel said that he did not

need extra time, reasoning that "by adding two additional points,

it would only strengthen my position as to the overrepresentation

of [the petitioner's] criminal history."               He added that he would

still be able to pursue his request for a downward departure.2                    He

then       presented   his   argument    for    a   46-month    sentence.        The

government made clear that it was "not objecting or arguing

against" such a sentence, which was "discussed as part of the plea

negotiations."          Rather,   the   government     was     "standing    by   the

[Agreement]" and "recommending a sentence at the lower end of the

applicable guideline range based on a [TOL] of 21, according to

the [CHC] that the Court accepts."



       2
       It is evident that trial counsel was using the term
"departure" colloquially to include both downward departures and
downward variances. Cf. United States v. Santini-Santiago, 846
F.3d 487, 489-90 (1st Cir. 2017) (explaining that departures may
only be "justified by reference to specified characteristics of
the offense or the offender, or to an early disposition program,"
whereas variances may be justified by a much broader swath of
rationales, "such as 'deterrence,' inducing 'respect for the law,'
and effective 'correctional treatment'" (quoting 18 U.S.C.
§ 3553(a))). The word "departure" appears to have been given this
same broad meaning in the Agreement.


                                        - 5 -
           When all was said and done, the district court adopted

the   probation    officer's    revised      recommendation,       assessed   ten

criminal history points, and placed the petitioner in CHC V. Using

the agreed TOL of 21, the court set the GSR at 70 to 87 months.

It proceeded to impose a 70-month term of immurement to run

consecutively vis-á-vis any state sentence that might be imposed.

Trial counsel immediately objected.

           Upon completion of the sentencing proceeding, trial

counsel had a two-minute conversation with the petitioner at the

courthouse cellblock.     After this brief chat, the two never spoke

again.   Judgment entered on May 13, 2016 — the same day that trial

counsel filed a so-called "Motion to Reconsider Sentence."                    The

motion papers contended that the 70-month sentence was "extremely

harsh" and "greater than necessary to fulfill the purposes of

sentencing under [18 U.S.C. §] 3553(a)."                 Three days later, the

district court summarily denied the motion.              Trial counsel did not

file a notice of appeal, and the fourteen-day appeal period expired

on May 27, 2016.     At that time, the petitioner was not aware that

trial counsel had filed a motion for reconsideration, nor was he

aware that it had been denied.

           The petitioner was shuttled among several different

correctional facilities following the imposition of sentence.

After arriving at his destination in mid-July, he wrote to the

district   court   requesting    a   copy     of   his    docket   sheet.     The


                                     - 6 -
petitioner stated that he was "in the process of a[n] appeal" and

needed "certain information."           The court granted his request on

August 2, 2016.       Upon receiving the docket sheet, the petitioner

realized for the first time that a notice of appeal had not been

filed on his behalf.        With the help of another inmate, he filed a

pro se petition to vacate his sentence pursuant to 28 U.S.C.

§ 2255, claiming that trial counsel was ineffective for failing to

file a notice of appeal.

            The district court referred the section 2255 petition to

a magistrate judge.        See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.

72(b)(1).          After   appointing     post-conviction       counsel,   the

magistrate judge held an evidentiary hearing.         Both the petitioner

and trial counsel testified about the details of their two-minute

cellblock conversation.          According to the petitioner, he "asked

the attorney why they had given me so much time" and made it plain

that all along, he had "wanted to appeal because the sentence was

too high."    The petitioner testified that trial counsel replied

that the sentence "could not be appealed."           When the petitioner

insisted that "there had to be a way," trial counsel advised him

to file a section 2255 petition.

            Trial counsel offered a somewhat different version.             He

recalled "discussing . . . the changes to the [PSI Report] and why

[the court] finally made the determination that it did."                   He

thought     that     he    had    "mentioned"   filing      a    motion    for


                                     - 7 -
reconsideration, but he did not "think [he and the petitioner]

ever agreed to it."       Importantly, trial counsel claimed to have

told the petitioner that although "there was a waiver of appeal,

. . . if [the petitioner] thought that there was anything that

could be appealed, that he had fourteen days and had to inform me

so that I could file something."

             The magistrate judge reserved decision and subsequently

issued   a    report    and   recommendation,   recommending   that   the

petitioner's ineffective assistance claim should be granted and

that he should be allowed an appropriate opportunity to perfect a

delayed appeal.        The magistrate judge found that although the

petitioner had not explicitly instructed trial counsel to file a

notice of appeal,3 he had manifestly demonstrated an interest in

appealing sufficient to trigger trial counsel's constitutional

duty to consult. The magistrate judge then concluded that, "[e]ven

fully crediting [trial counsel's] testimony, his discussion with

[the petitioner at the cellblock] still did not meet the Supreme

Court's requirement for a consult."        Building on this foundation,

the magistrate judge ruled that the Flores-Ortega presumption of

prejudice, see 528 U.S. at 483, applied even though the petitioner

had signed an appeal waiver. Thus, what remained was "to determine


     3 In his appellate briefs, the petitioner does not argue that
he explicitly instructed trial counsel to file a notice of appeal.
Consequently, we deem any such argument waived. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).


                                   - 8 -
whether [the petitioner] showed . . . a reasonable probability

that he would have timely appealed."        The magistrate judge then

resolved this issue in the petitioner's favor and recommended

granting the section 2255 petition.

           The government objected, see Fed. R. Crim. P. 59(b)(2),

and the district court, exercising de novo review, see Fed. R.

Crim. P. 59(b)(3), and without holding a further evidentiary

hearing, rejected the magistrate judge's recommendation.               The

court did not take issue with any of the magistrate judge's

findings   of    fact   but,   rather,    held    that    Flores-Ortega's

presumption of prejudice was inapposite because the petitioner had

executed an appeal waiver.     In the absence of such a presumption,

the petitioner could not (in the district court's view) show any

prejudice flowing from trial counsel's failure to file a timely

notice of appeal.   The court acknowledged, though, that if Flores-

Ortega applied notwithstanding the appeal waiver, the petitioner

might be able to demonstrate that he had expressed an interest in

appealing to trial counsel and that trial counsel's failure to

consult with him may have deprived him of an appeal he would

otherwise have taken.

           The    district     court     issued    a     certificate    of

appealability, see 28 U.S.C. § 2253(c), and this timely appeal

ensued.




                                 - 9 -
II. ANALYSIS

          When       a    habeas   petitioner   appeals   from   the    district

court's denial of a section 2255 petition for post-conviction

relief following an evidentiary hearing, our review of the court's

factual findings is for clear error. See Casiano-Jiménez v. United

States, 817 F.3d 816, 820 (1st Cir. 2016).            Questions of law, of

course, engender de novo review.           See id.    Here, the magistrate

judge made factual findings after an evidentiary hearing.                     The

district court — which did not have the benefit of hearing live

testimony — did not take issue with the magistrate judge's factual

findings, nor did it make any explicit factual findings of its

own.   Thus, we treat the district court as "adopt[ing] (albeit

implicitly)    the       well-considered   factual   findings    made    by   the

Magistrate Judge."          United States v. J.C.D., 861 F.3d 1, 5 (1st

Cir. 2017).

          Our starting point is the constitutional guarantee of

"the right to the effective assistance of counsel."              Strickland v.

Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson,

397 U.S. 759, 771 n.14 (1970)); see U.S. Const. amend. VI.                    In

order to succeed on an ineffective assistance claim, a "defendant

must show both that counsel's performance was deficient and that

it prejudiced his defense."          Janosky v. St. Amand, 594 F.3d 39, 45

(1st Cir. 2010) (citing Strickland, 466 U.S. at 687).              In Flores-

Ortega, the Supreme Court held that Strickland "applies to claims


                                      - 10 -
. . . that counsel was constitutionally ineffective for failing to

file a notice of appeal."    528 U.S. at 477.

            With respect to the first element of the Strickland

inquiry,    the   Flores-Ortega    Court    concluded      that   a     defense

attorney's representation is constitutionally deficient if the

attorney    either   "disregards    specific     instructions         from   the

defendant to file a notice of appeal" or fails (under certain

circumstances) to consult with the defendant about an appeal.                Id.

at   480.    Specifically,   the    Court   held    that     "counsel    has   a

constitutionally imposed duty to consult with the defendant about

an appeal when there is reason to think either (1) that a rational

defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular

defendant    reasonably   demonstrated      to     counsel     that     he   was

interested in appealing."    Id.     By "consult," the Court clarified

that it meant "advising the defendant about the advantages and

disadvantages of taking an appeal, and making a reasonable effort

to discover the defendant's wishes."        Id. at 478.

            With respect to the second element of the Strickland

inquiry, the Flores-Ortega Court concluded that a defendant whose

attorney fails to carry out a duty to consult with him about an

appeal is entitled to a presumption of prejudice.            See id. at 483.

A defendant is not required to show that an appeal is likely to be

successful in order to be entitled to file an appeal out-of-time


                                   - 11 -
based   on    ineffective   assistance      of    counsel;    he   need   only

demonstrate that "counsel's constitutionally deficient performance

deprive[d] [him] of an appeal that he otherwise would have taken."

Id. at 484.

             Until very recently, federal courts were divided as to

whether the Flores-Ortega presumption of prejudice applies when a

defendant has executed an appeal waiver.            Compare, e.g., Witthar

v. United States, 793 F.3d 920, 923 (8th Cir. 2015) (holding

Flores-Ortega applicable notwithstanding signed appeal waiver);

Campusano v. United States, 442 F.3d 770, 776-77 (2d Cir. 2006)

(same); Gomez-Diaz v. United States, 433 F.3d 788, 794 (11th Cir.

2005) (same); United States v. Sandoval-Lopez, 409 F.3d 1193, 1198

(9th Cir. 2005) (same), with Nunez v. United States, 546 F.3d 450,

455 (7th Cir. 2008) (holding Flores-Ortega inapplicable because

defendant had signed appeal waiver); United States v. Mabry, 536

F.3d 231, 241 (3d Cir. 2008) (same). But this question, previously

the subject of a circuit split, has now been settled.               In Garza,

the Court held four-square that "the presumption of prejudice

recognized    in   Flores-Ortega    applies      regardless   of   whether   a

defendant has signed an appeal waiver."            139 S. Ct. at 749.     The

Garza Court explained that "while signing an appeal waiver means

giving up some, many, or even most appellate claims, some claims

nevertheless remain."       Id. at 745; see United States v. Teeter,

257 F.3d 14, 24-26 (1st Cir. 2001) (explaining that appeal waiver


                                   - 12 -
does not apply when waiver's scope was not clearly delineated,

when plea was not knowing and voluntary, or when enforcing waiver

"would work a miscarriage of justice").     The Court stressed that

filing a notice of appeal is "a purely ministerial task that

imposes no great burden on counsel."      Garza, 139 S. Ct. at 745

(quoting Flores-Ortega, 528 U.S. at 474).

          Although the defendant in Garza — unlike the petitioner

— explicitly instructed his attorney to appeal, we see no reason

why this distinction would affect Garza's holding that the Flores-

Ortega presumption of prejudice "applies regardless of whether a

defendant has signed an appeal waiver."     Id. at 749.   After all,

Flores-Ortega involved a defendant who had not expressly asked his

attorney to file an appeal.   See 528 U.S. at 477.    We hold that

Garza applies and, thus, we proceed to analyze the petitioner's

claim under the Flores-Ortega framework.

          The first question is whether trial counsel had a duty

to consult with the petitioner.   As we already have explained, the

duty to consult is triggered either when "a rational defendant

would want to appeal" or when a "particular defendant reasonably

demonstrated to counsel that he was interested in appealing."    Id.

at 480.   In this instance, the record makes manifest that the

petitioner expressed to trial counsel an interest in appealing

sufficient to activate trial counsel's duty to consult.




                              - 13 -
           We have yet to consider what qualifies as "reasonably

demonstrat[ing]" an interest in appealing.                  We agree with the

weight of authority, though, that a defendant must have done more

than merely express his displeasure at sentencing.                       See United

States v. Cong Van Pham, 722 F.3d 320, 325 (5th Cir. 2013); Jackson

v. Att'y Gen. of Nev., 268 F. App'x 615, 620 (9th Cir. 2008).

Instead, the defendant must have "said something to his counsel

indicating that he had an interest in appealing."                  Cong Van Pham,

722 F.3d at 325 (emphasis in original) (quoting United States v.

Cooper, 617 F.3d 307, 313 (4th Cir. 2010)).                 A duty to consult

arises,   for   example,    "when   .   .    .    a    defendant       who   received

consecutive sentences asked 'about having time run together,'" id.

(quoting Frazer v. South Carolina, 430 F.3d 696, 702, 712 (4th

Cir. 2005)), or "when a defendant asked after sentencing 'what's

next? What can we do now?,'" id. (quoting Palacios v. United

States, 453 F. App'x 887, 889 (11th Cir. 2011) (per curiam)).

           Here, the magistrate judge credited the petitioner's

testimony that he asked trial counsel why he had gotten "so much

time." In addition, it is undisputed that the petitioner and trial

counsel   discussed   the    possibility          of    filing     a    motion    for

reconsideration.      The    government          argues   that     a    motion    for

reconsideration and an appeal are materially different.                          This

argument is unavailing.




                                    - 14 -
           To begin, "[t]here is simply no such thing as a 'motion

to reconsider' an otherwise final sentence."                   United States v.

Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014).              In other words, the

only   vehicle      for   post-conviction       relief    that    trial   counsel

discussed with the petitioner did not actually exist — yet the

petitioner had no way of knowing that.             Unsurprisingly, then — as

the district court noted — the petitioner's testimony at the

evidentiary    hearing       "exhibited    confusion"     and     "conflate[d]    a

notice of appeal with a motion for reconsideration."                Rojas-Medina

v. United States, 290 F. Supp. 3d 145, 156-57 (D.P.R. 2018).                      A

defendant — especially a defendant who is not an English speaker

— should not be required to use magic words in order to trigger

his counsel's duty to advise him about his right to appeal.                     See

Cong Van Pham, 722 F.3d at 325.           What counts is the substance and

thrust of what the defendant says to counsel.

           In the case at hand, the petitioner made it luminously

clear that he was dissatisfied with the sentence imposed and

interested in whatever relief might be available.                    No more was

exigible to ground the conclusion that the petitioner reasonably

demonstrated     to    his   lawyer     his    interest   in     appealing,     thus

triggering    the     lawyer's   duty     to   consult    with    him   about   the

advantages and disadvantages of taking an appeal.

           A question remains as to whether trial counsel fulfilled

his duty to consult.          We think not.       Trial counsel's two-minute


                                      - 15 -
chat    with    the    petitioner,    without   more,       was   insufficient    to

discharge this duty.        At a minimum, trial counsel was required to

advise his client about the pros and cons of taking an appeal, and

then to make a reasonable effort to ascertain his client's wishes.

See Flores-Ortega, 528 U.S. at 478.               Even if we were to credit

trial counsel's testimony that he told the petitioner that "if he

thought . . . there was anything that could be appealed . . . he

had fourteen days" within which to inform trial counsel that he

wanted to appeal — a matter on which we take no view — that

statement did not shed any glimmer of light on the advantages or

disadvantages of taking an appeal.

               In an attempt to sidestep this hurdle, the government

points to conversations between the petitioner and trial counsel

prior    to    sentencing,     in    which    trial   counsel      "advised    [the

petitioner] about the consequences of his appellate waiver."                     The

government       asserts     that,    examining       the     totality    of     the

circumstances         (including    these    pre-sentencing       conversations),

"[trial counsel] did more than enough to effectively 'consult'

with [the petitioner] about an appeal."

               This assertion defies reason.          Even if we were disposed

to consider the pre-sentencing conversations, it appears that

trial counsel did no more than inform the petitioner that his

appeal waiver would prevent him from filing an appeal.                   That may

or may not have been true.                  See Teeter, 257 F.3d at 24-26


                                      - 16 -
(cataloguing exceptions to appeal waiver's preclusive effect).   In

all events, we agree with the Fifth Circuit that "[c]ounsel's duty

to [consult] requires more than simply notice that an appeal is

available or advice that an appeal may be unavailing."    White v.

Johnson, 180 F.3d 648, 652 (5th Cir. 1999).

          Our inquiry does not end with the conclusion that trial

counsel did not properly discharge his duty to consult. It remains

for us to determine whether counsel's constitutionally deficient

performance prejudiced the petitioner by "depriv[ing] [him] of an

appeal that he otherwise would have taken."     Flores-Ortega, 528

U.S. at 484.   The Supreme Court has cautioned that although this

question ultimately "will turn on the facts of the particular

case[,] . . . evidence that there were nonfrivolous grounds for

appeal or that the defendant promptly expressed a desire to appeal

will often be highly relevant in making this determination."     Id.

at 472.

          Here, the petitioner promptly expressed a desire to

appeal.   At his first possible opportunity to speak with counsel

after sentencing, he expressed dissatisfaction with his sentence

and an interest in pursuing post-conviction relief.       He then

requested his docket sheet from the district court soon after

arriving at his designated custodial facility.      Upon realizing

that no appeal had been taken, he promptly sought assistance and

perfected a section 2255 petition.     Cf. Frazer, 430 F.3d at 712


                              - 17 -
(noting that petitioner's "tenacity in pursuing habeas relief

. . . bolsters th[e] conclusion" that he would have appealed).

              To cinch the matter, we find that the petitioner has at

least one nonfrivolous ground for appealing, notwithstanding his

appeal   waiver.        He   has   made   it   pellucid    that   he    wishes    to

challenge, inter alia, the district court's determination that his

sentence should run consecutive to, not concurrent with, any state

sentence.      In United States v. Maldonado-Escarfullery, we held

that an appeal of a consecutive sentence fell beyond the reach of

an   appeal    waiver   when   "the   plea     agreement    did   not    make    any

recommendation as to whether the sentence should run concurrently

or consecutively."       689 F.3d 94, 97 n.2 (1st Cir. 2012).             Several

years later, we reached the same conclusion in United States v.

Santiago-Burgos, 750 F.3d 19, 23 (1st Cir. 2014).

              The petitioner has a plausible argument that the same is

true here.      The SENTENCING RECOMMENDATION provision in his case

did not specify whether his sentence should run concurrently or

consecutively, yet the district court chose the latter. It follows

that the petitioner's proposed challenge to the district court's

refusal to run his sentence concurrently with any state sentence

that might be imposed constitutes a nonfrivolous ground of appeal.

After all, an argument need only be colorable to qualify as

nonfrivolous, see United States v. Aguilera, 179 F.3d 604, 607

(8th Cir. 1999); it does not have to be a sure winner.


                                      - 18 -
          To say more would be superogatory.   We hold that trial

counsel's failure to consult deprived the petitioner of an appeal

that he otherwise would have taken.

III. CONCLUSION

          We need go no further. For the reasons elucidated above,

we reverse the judgment of the district court and remand with

instructions to vacate the judgment in the underlying criminal

case and reenter it so that the petitioner may enjoy a fair

opportunity to file a timely notice of appeal. For these purposes,

the district court shall follow the procedural roadmap charted by

this court in United States v. Torres-Otero, 232 F.3d 24, 31-32

(1st Cir. 2000). Mandate shall issue forthwith; without prejudice,

however, to the right of either party to file, within customary

time limits, petitions for rehearing or rehearing en banc.




                             - 19 -
