          United States Court of Appeals
                     For the First Circuit


No. 17-1506

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        FRANKLYN MORILLO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                             Before

                 Thompson, Boudin, and Kayatta,
                         Circuit Judges.


     Steven A. Feldman and Feldman and Feldman on brief for
appellant.
     John J. Farley, Acting United States Attorney, and Seth R.
Aframe, Assistant United States Attorney, on brief for appellee.


                        December 4, 2018
            BOUDIN,   Circuit    Judge.       In    October   2016,   Franklyn

Morillo pled guilty in New Hampshire district court to conspiracy

to distribute and possess with intent to distribute oxycodone and

cocaine.   In May 2017, the district judge sentenced Morillo to 168

months in prison.       Morillo now appeals to contest his sentence.

Morillo    challenges    the    application    of    particular   sentencing

enhancements and the imposition of certain supervised-release

conditions.

            At the threshold, the government says that Morillo has

no right to contest his sentence because his guilty plea, the

result of a plea bargain with the government, includes an express

waiver of his right to appeal his conviction or sentence if his

sentence rests on a base offense level no lower than twenty six

and no higher than thirty.1         At sentencing, the district judge

ruled that Morillo had a base offense level of thirty, thus

satisfying the condition on which the waiver rested.                  Morillo

responds that the district judge (allegedly) "failed to conduct

any meaningful interrogation on the waiver."




     1 The government also contends that Morillo forfeited his
right to contest the supervised-release conditions because he
failed to confront head-on in his brief the waiver of appeal with
respect to the supervised-release conditions. United States v.
Miliano, 480 F.3d 605, 608 (1st Cir. 2007). We find that Morillo
did contest the waiver both generally in his opening brief and
specifically in challenging the supervised-release conditions.


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            In     1999,   a   new   rule   of   criminal   procedure    became

effective, now re-codified and designated Federal Rule of Criminal

Procedure 11(b)(1)(N).          Rule 11(b)(1)(N) requires that when a

defendant seeks to waive his or her right to appeal a sentence

when pleading guilty--today a common provision sought by the

government in plea bargains--the judge "must inform the defendant

of, and determine that the defendant understands, . . . the terms

of any plea-agreement provision waiving the right to appeal or to

collaterally attack the sentence . . . ."                   Fed. R. Crim. P.

11(b)(1)(N).

            A year and a half later, this court, in an opinion by

Judge Selya, addressed several legal questions relating to the new

rule.    United States v. Teeter, 257 F.3d 14 (1st Cir. 2001).              By

a formulation repeatedly cited by this court thereafter, Teeter

requires that appeal waivers meet three criteria:

            - First, the written waiver must comprise "a clear

statement" describing the waiver and specifying its scope. Teeter,

257 F.3d at 24.

            - Second, "[m]indful" of Rule 11(b)(1)(N), the record

must show that the judge's interrogation "suffice[d] to ensure

that the defendant freely and intelligently agreed to waive [his

or] her right to appeal [his or] her forthcoming sentence."               Id.

            - Third, even if the plea agreement and the change of

plea    colloquy    are    satisfactory,      the   reviewing   court   retains


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discretion to refuse to honor a waiver if denying a right to appeal

would "work a miscarriage of justice."                 Id. at 25.

              Next, in United States v. Borrero-Acevedo, 533 F.3d 11

(1st Cir. 2008), Judge Lynch resolved another appeal from a

sentence following a defendant's waiver of his right to appeal.

At the change-of-plea proceeding, the magistrate judge had failed

to   comply    with   Rule    11(b)(1)(N).         On    appeal,    the    defendant

attempted to avoid the effect of his appeal waiver because of the

judge's failure to ask him specifically about the waiver; but the

defendant had not made a contemporaneous objection to this failure.

              Applying    Supreme      Court    plain-error    decisions,        Judge

Lynch ruled that when a defendant fails to preserve an alleged

error regarding his appeal-waiver colloquy, the defendant must

show "a reasonable probability that he would not have entered the

plea had the error not been made."               Borrero-Acevedo, 533 F.3d at

13–14.    Borrero        failed   to   make     this    showing,    so    the   waiver

foreclosed the appeal.         Id. at 17–18.

              While Teeter's tripartite test remains in force in this

circuit, Borrero-Acevedo's plain-error test applies to cases, such

as Morillo's, where a defendant seeks to avoid the effect of his

appeal waiver because of an unpreserved Rule 11(b)(1)(N) error.

Even in such cases, Teeter's miscarriage-of-justice exception

continues to apply.          Sotirion v. United States, 617 F.3d 27, 36–

37 (1st Cir. 2010).          Where a defendant claims his waiver was not


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made knowingly or voluntarily for reasons other than an unpreserved

Rule 11(b)(1)(N) error, Teeter's three-part inquiry alone governs.

Id. at 34 n.6.

            Here, Morillo's appeal waiver bars his challenges to his

sentence,   including   both   the   sentencing   enhancements   and   the

supervised-release conditions.2        He fails to satisfy the Borrero-

Acevedo plain-error test because no error--plain or otherwise--

occurred    in   the   appeal-waiver    colloquy.     An   appeal-waiver

inquiry's adequacy depends on the specifics of the case, including

questions asked or statements made by the judge, characteristics

of the defendant, and evidence that the defendant understood that

he was waiving his right to appeal as specified by the waiver.

            The court explained to Morillo: "[U]nder the terms of

your agreement with the government you've waived or given up your

right to file . . . a direct appeal of your conviction or sentence

. . . but with four notable exceptions."       The court identified for

Morillo the circumstances in which he could appeal despite the

waiver, none of which applies here.        The court then asked whether

Morillo had "discussed each term of the written plea agreement"

with his attorney, and Morillo said that he had.                 The plea




     2 Supervised-release conditions are part of "the sentence"
and so are embraced by an enforceable waiver of the right to appeal
guilt and sentence. United States v. Santiago, 769 F.3d 1, 7 (1st
Cir. 2014).


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agreement included a clear statement explaining the appeal waiver

and its scope.

           Morillo's brief poses lines of questioning employed in

other cases assessing the adequacy of appeal-waiver colloquies but

not used in this one, arguing that these alternatives show the

colloquy in his case to be faulty; but the number of possible

questions is infinite, and this mustering of questions asked by

other judges does not itself show any inadequacy in the judge's

colloquy in this case.        It is the defendant's task to identify a

substantive flaw--not merely to compare this colloquy with others.

           Nothing suggested the waiver deserved enhanced scrutiny.

Morillo   was   not   an    inexperienced   youth   on   the   fringes   of   a

conspiracy but the leader of a major drug operation who has some

college education.         Morillo graduated from a Massachusetts high

school and apparently studied for one year at a community college

to pursue a career in education. Further, the plea bargain offered

sufficient advantages in limiting his exposure in the face of

strong evidence of guilt.3       Nothing suggested that Morillo had been

coerced or offered other inducements warranting further inquiry.


     3 The evidence included multiple witnesses against Morillo as
well as co-conspirators he supervised. He also had a substantial
criminal history and committed the present offense while on
probation. In exchange for Morillo's guilty plea, the government
agreed to sentencing stipulations: First, Morillo's base offense
level would be no lower than twenty six but no higher than thirty.
Second, the government would not oppose a reduction in Morillo's
adjusted offense level based upon his acceptance of personal


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             Even had the colloquy been plain error, Morillo fails to

meet the prejudice standard set forth in Borrero-Acevedo.             After

Borrero-Acevedo, a defendant asserting an unpreserved claim of a

Rule 11(b)(1)(N) error must establish that he would not have pled

guilty but for the error in the colloquy.              533 F.3d at 13–14.

Given the strong evidence of Morillo's guilt and the substantial

reduction in the sentence that the plea bargain made available,

Morillo cannot meet this standard.

             Morillo's last resort is Teeter's miscarriage-of-justice

exception.      When applying the exception, the court on appeal

considers whether enforcing the waiver with respect to each claim

would risk a miscarriage of justice.             United States v. Cabrera-

Rivera, 893 F.3d 14, 23–29 (1st Cir. 2018).

             Teeter's miscarriage-of-justice exception applies only

in "egregious cases."      Teeter, 257 F.3d at 25.         Morillo's claim

that   the    district   court   abused    its    discretion   by   imposing

particular sentencing enhancements is precisely a "garden-variety"

claim outside the scope of the miscarriage-of-justice exception.

Id. at 26.       And Morillo's claim that the supervised-release

conditions are inconsistent with the 2016 guidelines amendments is

simply mistaken: far from being inconsistent, the conditions are



responsibility for the offense. But for the plea bargain, a much
longer sentence could easily have been imposed and almost certainly
would have been.


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identical   to   the   amendments.      Morillo's   appeal   waiver   is

enforceable and bars his appeal.

     Affirmed.




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