
USCA1 Opinion

	




          November 23, 1992                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                _____________________        No. 92-1483        No. 92-1483                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                      Appellee,                                      Appellee,                                          v.                                          v.                                JOSE MERCEDES-AMPARO,                                JOSE MERCEDES-AMPARO,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                 ____________________                                        Before                                        Before                                 Breyer, Chief Judge,                                 Breyer, Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                               and Cyr, Circuit Judge.                                        _____________                                 ____________________                                 ____________________            Luz M. R os Rosario for appellant.            Luz M. R os Rosario for appellant.            ___________________            Esther  Castro  Schmidt, Assistant  United  States Attorney,  with            Esther  Castro  Schmidt, Assistant  United  States Attorney,  with            _______________________        whom  Daniel F. Lopez-Romo, United States Attorney, and Jos  A. Quiles        whom  Daniel F. Lopez-Romo, United States Attorney, and Jos  A. Quiles              ____________________                              ______________        Espinosa, Senior Litigation Counsel, were on brief for appellee.        Espinosa, Senior Litigation Counsel, were on brief for appellee.        ________                                 ____________________                                 ____________________                                 ____________________                                 ____________________                    CYR,  Circuit Judge.   Appellant  Jose Mercedes  Amparo                    CYR,  Circuit Judge.                          _____________          pled guilty to attempting to bring illegal aliens into the United          States  in violation of 8 U.S.C.   1324(a)(1)(A).  He claims that          the  twenty-four month prison term  imposed by the district court          was disproportionately severe and  premised on an improper upward          departure.   We remand for  resentencing due to  the government's          breach of its plea  agreement obligation to recommend  a sentence          within the applicable guideline sentencing range ("GSR").                                            I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    On September 27, 1991, the  United States Border Patrol          intercepted a 38-foot  yawl carrying  ninety-five illegal  aliens          from the  Dominican Republic to Aguadilla, Puerto  Rico, which is          not a designated  port of entry into  the United States.   Border          Patrol agents found neither food nor water aboard the vessel, nor          did  they  find  life  jackets, safety  or  emergency  equipment,          sanitary facilities, or a radio for communication.  Appellant was          identified  as  a captain  of the  vessel  and arrested.  The co-          captain  was arrested as well, and both men were indicted under 8          U.S.C.   1324(a)(1)(A).                    Appellant  entered into  a  plea agreement  whereby  he          would plead guilty to  one count, in return for  the government's          recommendation  of  a  sentence  within the  applicable  GSR  and          dismissal of  the  two  remaining  counts.   At  sentencing,  the          district  court assigned  a base  offense level  of nine  for the          offense of  conviction under 8 U.S.C.    1324(a)(1)(A), see U.S.-                                                                  ___          S.G.   2L1.1(a)(2),  which was reduced  by two levels  for accep-          tance  of responsibility,  then  offset by  a two  level increase          because appellant, as a captain of the vessel, provided a special          skill to facilitate the commission  of the offense, see  U.S.S.G.                                                              ___            3B1.3.  The  adjusted offense  level of nine,  combined with  a          category  I criminal history, yielded  a 4-to-10 month  GSR.  The          court  decided to depart  upward to offense  level fifteen, which          resulted  in an 18-to-24 month GSR, then sentenced appellant to a          twenty-four month prison term.                    At oral argument on  appeal, appellant asserted for the          first time that the government had breached an  express provision          in the plea agreement  by not recommending a sentence  within the          4-to-10 month  GSR.   Government  counsel conceded  that no  such          recommendation  had been  made.   Moreover, we note,  sua sponte,                                                                ___ ______          that  the  presentence  report ("PSR")  misstates  the  pertinent          provision in the plea agreement.1                                        ____________________               1Although  the  plea  agreement  plainly  states  that  "the          parties  have agreed to recommend that the sentence to be imposed          be within the guideline range," the PSR states:  "On December 12,          1991, the defendant pled guilty to count one pursuant to the plea          agreement  which proposes  that in  exchange for  the defendant's          plea of guilt [sic] the government will not make a recommendation                                                  ___ ____ _ ______________          as  to sentencing, but  will move the Court  for dismissal of the          __  __ __________          remaining counts."  (Emphasis added.)  Elsewhere, the PSR states:          "Under the plea agreement, the defendant has pled guilty to count          one in exchange for the dismissal of count[s] two and three."                                          3                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    "Plea bargaining is a  fundamental part of our criminal          justice system . . .," Correale  v. United States, 479 F.2d  944,                                 ________     _____________          947  (1st Cir.  1973),  but  though  it promotes  efficiency  and          expedition  in  the administration  of criminal  proceedings, its          benefits "flow . .  . from the defendant's  waiver of almost  all          the  constitutional  rights  we  deem fundamental.    There  must          accordingly be safeguards to insure that the waiver is knowledge-          able . . . and voluntary . . . ."  Id. (citing Boykin v. Alabama,                                             ___         ______    _______          395  U.S. 238 (1969), and  Machibroda v. United  States, 368 U.S.                                     __________    ______________          487 (1962)).   "Though a legitimate prosecution promise  does not          render a guilty plea legally involuntary, Brady v. United States,                                                    _____    _____________          397  U.S. 742 (1970), its fulfillment is a necessary predicate to          a  conclusion of voluntariness when a plea 'rests in any signifi-          cant degree' on it."   Correale, 479 F.2d at 947  (quoting Santo-                                 ________                            ______          bello v. New York, 404 U.S. 257, 262 (1971)).          _____    ________                    Ordinarily,  "an issue  not presented  in the  district          court  will not  be  addressed for  the  first time  on  appeal."          United States v.  Curzi, 867 F.2d  36, 44 (1st  Cir. 1989).   See          _____________     _____                                       ___          also United  States v. Fox,  889 F.2d  357, 359 (1st  Cir. 1989);          ____ ______________    ___          United States v. Figueroa,  818 F.2d 1020, 1025 (1st  Cir. 1987);          _____________    ________          United  States v. Argentine, 814  F.2d 783, 791  (1st Cir. 1987).          ______________    _________          An appellate  court nevertheless has the  discretionary power, in          an exceptional case,  to resolve  an issue not  passed on  below.          Singleton v. Wulff,  428 U.S. 106, 121 (1976).  See United States          _________    _____                              ___ _____________                                          4          v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990); United States             __________                                       _____________          v. Krynicki, 689 F.2d  289 (1st Cir. 1982).  Although the discre-             ________          tionary appellate  power to consider an  unpreserved issue should          be  exercised  sparingly, La  Guardia, 902  F.2d  at 1013,  it is                                    ___________          appropriately  invoked if  "'injustice might  otherwise result.'"          Singleton, 428 U.S. at 121 (quoting Hormel v. Helvering, 312 U.S.          _________                           ______    _________          552, 557 (1941)).                     The issue  belatedly raised on appeal  exhibits charac-          teristics which  we have  considered sufficiently  exceptional to          warrant appellate  review in  other cases.   The issue is  one of          law, as there is no dispute that the plea agreement was breached;          and the issue is susceptible of resolution on the present record.          See  Krynicki, 689 F.2d at 291; see  also La Guardia, 902 F.2d at          ___  ________                   ___  ____ __________          1013.   Moreover,  due to  the  nature of  the breach,  the  only          question remaining  is the appropriate remedy.  See Krynicki, 689                                                          ___ ________          F.2d at 292;  see also La  Guardia, 902 F.2d  at 1013.   Finally,                        ___ ____ ___________          appellate  deferral  of the  belated  claim  would  not "aid  the          administration of the criminal justice system," see Krynicki, 689                                                          ___ ________          F.2d at 292;  see also La  Guardia, 902 F.2d  at 1013, and,  most                        ___ ____ ___________          importantly,  it might well result in a miscarriage of justice in          the present case.   See Singleton, 428  U.S. at 121;  La Guardia,                              ___ _________                     __________          902 F.2d at 1013; Krynicki, 689 F.2d at 292.                            ________                    There is  no conceivable basis for  concluding that the          government's promise to recommend  a sentence within the GSR  was          not  a  significant factor  in  inducing appellant's  plea.   See                                                                        ___          Correale, 479 F.2d  at 947.  Moreover, the  material misstatement          ________                                          5          in  the PSR      that the  government  would make  no  sentencing          recommendation     may  well have  misled the  district court  to          believe  that the  government was  under no  duty to  recommend a                                                   __  ____          sentence  within the  GSR.   In these  circumstances, we  are not          prepared  to assume  either that  the government's  commitment to          recommend  a sentence within the GSR  was a matter of no signifi-          cance  in obtaining appellant's guilty plea, see id., or that the                                                       ___ ___          court would not  have given serious consideration to  the govern-          ment's  sentencing recommendation  had it  been made.   Thus,  we          cannot exclude all likelihood  that appellant's waiver of consti-          tutional rights lacked the requisite voluntariness, see Correale,                                                              ___ ________          479 F.2d at  947, or that our failure to  address the issue would          result  in a miscarriage of justice.   See Singleton, 428 U.S. at                                                 ___ _________          121 (appellate resolution of unpreserved issue may be appropriate          where injustice would otherwise result).2                    The undisputed breach of  a core provision in  the plea          agreement,  requiring  the  government  to recommend  a  sentence          within  the GSR,  must be  remedied.3   Normally, a  plea bargain          breach by the government may be remedied either through  specific          performance  of  the unperformed  provision  or  by allowing  the          defendant to withdraw the plea and proceed to trial.  Kingsley v.                                                                ________          United States, 968 F.2d  109, 133 (1st Cir. 1992);  United States          _____________                                       _____________          v. Canada, 960  F.2d 263, 271 (1st Cir.  1992); see Santobello v.             ______                                       ___ __________                                        ____________________               2We note as well that appellant is illiterate.               3Although  we accept  the  government's  assurances at  oral          argument  that its breach was inadvertent, "[t]hat . . . does not          lessen its impact."  Santobello, 404 U.S. at 262.                               __________                                          6          New York, 404  U.S. 257, 263  (1971).  "In  choosing a remedy,  a          ________          court must exercise its 'sound discretion . . . under the circum-          stances  of  each case.'  . .  .  Specific performance,  the less          extreme  remedy, is preferred."  Kingsley, 968 F.2d at 113 (cita-                                           ________          tions  omitted) (quoting United States v. Garcia, 698 F.2d 31, 37                                   _____________    ______          (1st Cir. 1983)).                    We believe specific performance is appropriate in these          circumstances.    Although it  misapprehends  the  nature of  the          breach,4 appellant's  request for "resentencing with  the express          instruction that  appellant be sentenced within  the [GSR]" indi-          cates appellant's  preference  for specific  performance,  rather          than  withdrawal of  the plea.   Moreover,  the choice  of remedy          rests with the court, not with the defendant.  Kingsley, 968 F.2d                                                         ________          at 113; Canada, 960 F.2d  at 271.  As specific performance  would                  ______          not  be "meaningless" in these circumstances, see id. at 114, but                                                        ___ ___          more appropriate than other remedies we  might fashion, we vacate          the sentence and remand for resentencing before a different judge          in accordance  with our normal practice.  See Canada, 960 F.2d at                                                    ___ ______          271  (remanding  for resentencing  before  a  different judge  to          remedy government's plea bargain breach).                    Vacated and remanded for resentencing.                    _______ ___ ________ ___ _____________                                        ____________________               4Appellant's  brief  on appeal  faults the  district court's          failure to impose  a sentence within the GSR.   However, the plea                     ______          agreement  expressly provides  that  "the sentence  will be  left          entirely to  the sound discretion of the  court . . ."  Thus, the          appellant was not entitled  to a sentence within the  GSR, but to          the government's recommendation of such a sentence.                           ______________                                          7
