
USCA1 Opinion

	




          August 4, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1037                                    UNITED STATES,                                      Appellee,                                          v.             RAMON TORRES-GONZALEZ, a/k/a REY, a/k/a EL LOCO, a/k/a JORGE                            SANTANA, a/k/a NELSON VARGAS,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ___________________                                        Before                              Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ___________________               Ramon Torres-Gonzalez on brief pro se.               _____________________               Jo  Ann  Harris,  Assistant  Attorney  General, Geoffrey  R.               _______________                                 ____________          Greiveldinger, Acting Chief, and Hope P. McGowan, Trial Attorney,          _____________                    _______________          U.S. Department of Justice, on brief for appellee.                                  __________________                                  __________________                 Per Curiam.  Ramon Torres-Gonzales appeals pro se from a                 __________                                 ___ __            district court order denying his motion for correction of his            sentence pursuant to Fed. R. App.  P. 35(a), as well as  from            the court's order denying his motion for reconsideration.  We            affirm.                                          I.                 The following facts are undisputed.  Torres-Gonzales was            named  in   twenty-four  counts  of   a  twenty-seven   count            indictment returned  on November  1,  1990.   The  indictment            charged  him  with  conspiracy  to  possess  with  intent  to            distribute  over  five  kilograms  of  cocaine,  one  hundred            kilograms of marijuana,  and one kilogram  of heroin, see  21                                                                  ___            U.S.C.    841(a)(1), 846; making false statements in passport            applications, see 18  U.S.C.   1542;  importing four  hundred                          ___            and seventy-five kilograms of cocaine into the United States,            see 21  U.S.C.    952, 960 and 18 U.S.C.   2; possessing with            ___            intent  to  distribute  the  four  hundred  and  seventy-five            kilograms  of cocaine, see 21 U.S.C. 841 (a)(1) and 18 U.S.C.                                   ___              2;  failing to file  United States Customs  reporting forms            with  regard to the exportation of  $100,000 in United States            currency, see 31 U.S.C.    5316, 5322(b), and 18  U.S.C.   2;                      ___            structuring  cash transactions  involving $100,000  in United            States currency, see 31 U.S.C.    5313, 5324, and 18 U.S.C.                               ___            2; and continuing criminal  enterprise, see 21 U.S.C.    848.                                                    ___            Based onthese charges,appellant faced apossible lifesentence.                 In December 1990 or January 1991, appellant agreed to be            debriefed by the  government.  The  preliminary agreement  he            entered into  with the  government provided  that he  was not            entitled at that juncture  to any "specific consideration" in            exchange for providing  a statement.  Sometime in  January or            February  1991,  then-prosecutor  De Jesus  informed  defense            counsel that, "at that moment," he was willing to recommend a            fifteen-year  term  of  imprisonment  based   on  appellant's            cooperation.    When  defense   counsel  later  brought  this            statement to  the attention  of prosecutor Gil,  lead counsel            for  the government,  Gil  informed him  that the  government            would  not  make  such  a  recommendation.    By  that  time,            prosecutor De Jesus was  no longer involved in the  case.  On            January   31,  1992,  Torres-Gonzalez  entered  into  a  plea            agreement with the government under  which he agreed to plead            guilty to the pre-Sentencing Guidelines offense of continuing            criminal enterprise, and the government agreed to dismiss the            remaining   counts   and   to   recommend   eighteen   years'            imprisonment.    The  district  court  subsequently  accepted            appellant's guilty plea and, on  May 11, 1992, sentenced  him            to eighteen years' imprisonment.   Appellant did not directly            appeal his conviction or sentence.                 On August 6,  1993, appellant filed a motion  to correct            his  sentence, pursuant to Fed.  R. Crim. P.  35(a), based on            the first prosecutor's  "offer" to  recommend fifteen  years'            imprisonment.  Appellant also expressed great remorse for his            actions and  requested that  the district court  exercise its            leniency  to reduce the sentence to fifteen years.  On August                                         -3-            12, 1993, the district  court denied the motion.   On October            25, 1993, appellant filed a motion for reconsideration of the            denial  of his Rule 35(a) motion, this time alleging that the            plea agreement that he ultimately reached with the government            was  unconstitutionally coerced.   On  December 2,  1993, the            district court  denied the motion for  reconsideration.  This            appeal followed.                                         II.                 On appeal, Torres-Gonzalez advances an argument based on            contract principles.   He concedes that,  as a general  rule,            the government may unilaterally  withdraw a plea offer before            it has  been approved by  the district court.   See  Mabry v.                                                            ___  _____            Johnson,  467 U.S.  504, 506-08 (1984).   However,  he argues            _______            that the government is bound by  such an offer if a defendant            worsens his position in reliance on it.  See United States v.                                                     ___ _____________            Papaleo,  853 F.2d 16, 18-19  (1st Cir. 1988) (observing that            _______            due process concerns may arise when a defendant detrimentally            relies  upon  a  government  promise and  stating  that  plea            agreements are  governed by  contract principles).   Although            the further details  of his argument are not  entirely clear,            appellant appears  to contend  that the  government initially            promised  him   a  lenient  sentence  in   exchange  for  his            cooperation  and  later  agreed  to  recommend  a  "lenient,"            fifteen-year sentence  based on his cooperation.   He further            argues that  the government's promise to  recommend a lenient                                         -4-            sentence  induced him  to  cooperate with  the government  by            making   a   statement   and   by    surrendering   property.            Consequently,  he   argues,  he  is   entitled  to   specific            performance by  the government of its  "promise" to recommend            fifteen years' imprisonment.                   At  the  outset,  we  observe that  it  is  questionable            whether we  have jurisdiction over this  appeal.  Appellant's            Rule 35(a) motion,  filed on  August 6, 1993,  was denied  on            August  12, 1993.   The  time period  for appealing  from the            denial of a Rule 35(a) motion  is ten days.  Fed. R.  App. P.            4(b).   Appellant's  notice of  appeal  was not  filed  until            December 17, 1993, obviously well beyond this ten-day period.            Although a  motion for reconsideration filed  within the time            period allotted for the filing of  a notice of an appeal will            extend the time for filing a notice of appeal, the October 25            motion  for  reconsideration  was  filed  beyond the  ten-day            period and  was  therefore untimely.   See  United States  v.                                                   ___  _____________            Carr, 932 F.2d 67,  70 (1st Cir.),  cert. denied, 112 S.  Ct.            ____                                ____________            112 (1991); United States v. Russo, 760 F.2d 1229, 1230 (11th                        _____________    _____            Cir. 1985).  Consequently, the motion for reconsideration did            not  extend the time for  appeal from the  Rule 35(a) denial,            and  this court  is also  apparently without  jurisdiction to                                         -5-            review  the  district  court's   denial  of  the  motion  for            reconsideration.  See Russo, 760 F.2d at 1230.1                                ___ _____                 Arguably, appellant's  October 25 motion  advances a new            ground to set aside his sentence and could be construed  as a            timely second Rule 35(a)  motion or as a timely  first motion            to  vacate, correct, or set aside his sentence pursuant to 28            U.S.C.    2255.2   Cf.  United States  v.  Zuleta-Molina, 840                               ___  _____________      _____________            F.2d 157, 158 (1st Cir. 1988) (observing that the merits of a            federal pro se prisoner's claims need not be circumscribed by                    ___ __            the  label attached  to  his pleadings).   However,  assuming            without deciding  that we  have jurisdiction over  the appeal            from the denial of  the October 25 motion, appellant  faces a            different  hurdle.   The detrimental  reliance argument  that            appellant  advances  on  appeal  was  not  presented  to  the                                            ____________________            1.  In  light of  our determination  that appellant  does not            have a timely appeal from the denial of his  August 6 motion,            we need  not address  whether Rule  35(a) was an  appropriate            vehicle for  this motion,  or, relatedly, whether  the motion            was timely filed.            2.  Under  the  version  of  Rule 35(a)  applicable  to  pre-            Sentencing Guideline cases, the court "may correct an illegal            sentence at any time."  The government questions whether this            rule  is a  source  of authority  to  provide relief  from  a            sentence  allegedly  imposed   after  an   unconstitutionally            coerced  plea agreement.  We  need not decide  whether such a            sentence  is  an "illegal  sentence"  within  the meaning  of            former Rule 35(a) because, as  noted above, the motion  could            also  be  construed as  a  collateral  attack on  appellant's            conviction,  which  also may  be brought  at  any time.   Cf.                                                                      ___            United  States v.  Flenory, 876  F.2d 10,  11 (3d  Cir. 1989)            ______________     _______            (declining  to  decide  whether Rule  35(a)  is  a source  of            authority to  afford relief from  breach of a  plea agreement            where  the Rule 35(a) motion  could be construed  as a   2255            motion).                                          -6-            district  court,  and hence  is  deemed waived.    See, e.g.,                                                               ___  ____            Sandstrom  v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)            _________     ______________            (arguments not made to the district court are waived).                 We  add  that, in  any  event, the  arguments  raised on            appeal appear unavailing.   We observe, first,  that there is            no  support whatsoever  in the  record for  appellant's claim            that  the  prosecution  initially   promised  him  a  lenient            sentence.  Even  were we  to assume that  such a promise  had            been made,  we would  reject appellant's contention  that the            government  breached this  "promise"  when it  recommended an            eighteen-year  sentence instead  of a  fifteen-year sentence.            Either recommendation was relatively lenient in comparison to            the potential life sentence appellant faced.                 Second,  although it  is undisputed  that in  January or            February   1991,   then-prosecutor   De  Jesus   stated   his            willingness,  "at that moment,"  to recommend  fifteen years'            incarceration,  it  is  by  no  means  clear that  De  Jesus'            statement constituted a firm offer or promise to do so.   See                                                                      ___            Santoni  v. FDIC,  677  F.2d 174,  179  (1st Cir.  1982)  (an            _______     ____            estoppel  claim must be  supported by a  definite and certain            promise).    Assuming,  arguendo, that  it  did,  appellant's                                    ________            detrimental  reliance  argument  still  fails.   By  his  own            admission  and  version  of  events,  the  cooperation  which            appellant  claims  was  induced  by De  Jesus'  "offer,"  was            completed  before  any  specific  number of  years  was  ever                                         -7-            mentioned.  Under the  circumstances, it cannot be  said that            appellant  relied upon  any promise  to recommend  a specific            term of incarceration.                 Affirmed.                 ________                                         -8-
