Sotirion v. US

Filing 920100804

Opinion

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var WPFootnote1 = 'The Hon. David H. Souter, Associate Justice (Ret.) of the\
Supreme Court of the United States, sitting by designation.\
'

var WPFootnote2 = ' We use the term "appellate waiver" to encompass the\
provision\'s waiver of both the right to bring a collateral\
challenge and the right to file a direct appeal. \
'

var WPFootnote3 = ' Sotirion pled guilty to one count of racketeering, 18 U.S.C.\
§ 1962(c), one count of conspiracy to commit racketeering, 18\
U.S.C. § 1962(d) and one count of filing a false income tax return,\
26 U.S.C. § 7206(1). \
'

var WPFootnote4 = ' Defense counsel successfully argued that a two-level\
increase for obstruction of justice was inapplicable, U.S.S.G.\
§ 3C1.1, and that only a three-level increase for his role as a\
manager in the offense was applicable, rather than a four-level\
increase for his role as a leader, U.S.S.G. § 3B1.1(a),(b). \
'

var WPFootnote5 = ' The court sentenced Sotirion to 109 months on each of the\
two racketeering counts and 36 months on the income tax count, all\
to be served concurrently.\
'

var WPFootnote6 = ' We note that the plain error standard applies only where, as\
here, a defendant\'s challenge to his appellate waiver is based on\
an "unpreserved claim of Rule 11(b)(1)(N) error." Borrero-Acevedo,\
533 F.3d at 13. However, a defendant could also claim that his\
appellate waiver was not knowing and voluntary on grounds unrelated\
to the district court\'s compliance with Rule 11(b)(1)(N) -- for\
example, on the ground that the defendant was incompetent when he\
signed the waiver. Plain error review would not apply if the\
defendant challenged the knowing and voluntary nature of his\
appellate waiver on grounds independent of the district court\'s\
compliance with Rule 11(b)(1)(N). See United States v. Goodson,\
544 F.3d 529, 539 n.9 (3d Cir. 2008) ("The plain error standard\
does not apply when a defendant\'s challenge to the knowing or\
voluntary nature of a waiver does not involve the district court\'s\
compliance with the plea colloquy required by the Rule. For\
example, a defendant who claims that he was misled or coerced into\
entering the agreement, or that he was incompetent when he signed\
the waiver, challenges the validity of the waiver itself, not the\
Rule 11 colloquy. Such a challenge would receive de novo review\
without the need for objection in the district court."). \
'

var WPFootnote7 = ' This is not a case where the defendant agreed to waive his\
right to appeal only if the court imposed a sentence that fell\
within the correct sentencing guidelines range. Cf. United States\
v. McCoy, 508 F.3d 74, 78 (1st Cir. 2007) (concluding that, where\
waiver stated that it applied only if the sentence imposed fell\
"within the guidelines range," without setting forth a proposed\
sentencing range, defendant waived only his right to appeal a\
correct application of the guidelines). \
'

var WPFootnote8 = ' Judge Howard believes that the above-quoted dicta from\
Borrero-Acevedo is contextually limited to claims of Rule 11 error,\
and thus he believes that there is no real tension between that\
dicta and our holding here that we may decline to enforce a waiver\
of appeal.\
'

var WPFootnote9 = ' We note that there is an open question of whether, and the\
extent to which, the miscarriage of justice inquiry under Teeter\
overlaps with the fourth prong of the plain error test, which asks\
whether the claimed Rule 11(b)(1)(N) error "seriously affect[ed]\
the fairness, integrity, or public reputation of the judicial\
proceedings," Borrero-Acevedo, 533 F.3d at 15 (internal quotation\
marks and citation omitted). See, e.g., Corso, 549 F.3d at 931 n.3\
(noting the question but declining to resolve it). We need not\
resolve that issue here, as we conclude that Sotirion\'s Rule\
11(b)(1)(N) claim fails on the second prong of the plain error test\
and therefore we do not reach the third and fourth prongs. We\
therefore do not speculate whether there could be situations in\
which a defendant claiming Rule 11(b)(1)(N) error fails to meet his\
burden under the third and fourth prongs of the plain error test,\
and yet nevertheless is able to demonstrate a miscarriage of\
justice under Teeter. \
'

var WPFootnote10 = ' Sotirion also argues, for the first time on appeal, that his\
waiver should not be enforced because his plea negotiations were\
"tainted by ineffective assistance of counsel," and therefore\
enforcement of the resulting plea agreement and waiver would work\
a miscarriage of justice. See Teeter, 257 F.3d at 25 n.9 (noting\
that a claim that the plea proceedings were infected by\
constitutionally deficient assistance of counsel could fall within\
miscarriage of justice exception). However, Sotirion did not\
present this argument to the district court; instead, he argued\
only that counsel provided ineffective assistance by failing to\
challenge the abuse-of-trust enhancement at sentencing. Thus, we\
deem the argument waived. United States v. Slade, 980 F.2d 27, 30\
(1st Cir. 1992) ("It is a bedrock rule that when a party has not\
presented an argument to the district court, she may not unveil it\
in the court of appeals.")\
'

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