United States v. Liriano-Blanco, No. 06-2919 (2d Cir. 2008)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on December 11, 2007.
Download PDF
06-2919-cr United States v. Liriano-Blanco 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 5 6 (Argued: September 5, 2007 Decided: December 11, 2007 Errata Filed: January 2, 2008) Docket No. 06-2919-cr 7 ------------------------------------- 8 UNITED STATES OF AMERICA, 9 Appellee, 10 - v - 11 ARIEL LIRIANO-BLANCO, 12 Defendant-Appellant. 13 ------------------------------------- 14 Before: 15 WALKER, CALABRESI, and SACK, Circuit Judges. Appeal by the defendant from a judgment of conviction 16 and sentence in the United States District Court for the Northern 17 District of New York (Thomas J. McAvoy, Judge). 18 defendant's plea of guilty pursuant to a plea agreement, which 19 included an appeal waiver by the defendant, to unlawfully 20 entering the United States in violation of 8 U.S.C. § 1326(a) and 21 (b)(2), the district judge declined to impose a non-Guidelines 22 sentence, because he thought that doing so was likely prohibited 23 by law. 24 misimpression as to the defendant's ability to appeal his 25 sentence, which may have affected the severity of the sentence 26 that the court imposed. Upon the The court was, at the time of sentencing, under a 1 2 Remanded in order to give the district court the opportunity to reconsider the sentence. 3 4 CRAIG M. CRIST, Dreyer Boyajian LLP, Albany, NY, for Defendant-Appellant. 5 6 7 8 9 10 11 12 13 BRENDA K. SANNES, Assistant United States Attorney (Edward P. Grogan, Assistant United States Attorney, of counsel), for Glenn T. Suddaby, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee. SACK, Circuit Judge: On its face, this appeal raises the question of the 14 authority of a district court to sentence a defendant below the 15 range provided by the United States Sentencing Guidelines (the 16 "Guidelines") when so-called "fast-track" downward departures are 17 not available in the district. 18 substance of this issue, because, we conclude, the waiver of 19 appeal included in the plea agreement of the defendant, Ariel 20 Liriano-Blanco, is effective and bars us from doing so. 21 Nevertheless, because the district court appears to have 22 determined the sentence based, in part, on its misimpression, 23 uncorrected by the government, that he could appeal his sentence 24 to us, and because that misimpression may have affected the 25 severity of the sentence that the court imposed, we remand to the 26 district court to provide it with an opportunity to reconsider. 27 BACKGROUND 28 29 We cannot, however, reach the On December 16, 2005, Liriano-Blanco entered this country illegally by walking from Canada to the United States at 2 1 an unauthorized border crossing at or near Champlain, New York. 2 His movements were detected by an intrusion device, which 3 notified the United States Border Patrol. 4 Patrol effected Liriano-Blanco's arrest. 5 A member of the Border On December 22, 2005, Liriano-Blanco was indicted in 6 the United States District Court for the Northern District of New 7 York on one count of unlawfully attempting to re-enter the United 8 States after being previously removed from the country following 9 his conviction of an aggravated felony, in violation of 8 U.S.C. 10 § 1326(a) and (b)(2). 11 entered into a plea agreement with the government. 12 agreed, inter alia, to plead guilty to various charges against 13 him and to waive the right to appeal any sentence of sixty months 14 or less. 15 On February 6, 2006, Liriano-Blanco In it, he On the same day, the district court (Thomas J. McAvoy, 16 Judge) held a video-conference plea hearing.1 17 colloquy, the court specifically addressed the appeal waiver 18 contained in the plea agreement, asking whether Liriano-Blanco 19 agreed to give up the right of appeal for any sentence of 60 20 months or less, whether he did so voluntarily, and whether he 21 understood the waiver when he agreed to it. 22 answered "yes" to each of these questions. 1 During the plea Liriano-Blanco Tr. of Plea Hearing, The district judge was in Binghamton, New York, while Liriano-Blanco and counsel for him and for the government were in Albany. Tr. of Plea Proceeding, Feb. 6, 2006. 3 1 Feb. 6, 2006, at 15-17. 2 The court then accepted Liriano-Blanco's guilty plea. 3 The Fast-Track Program 4 Underlying the sentencing issues the district court 5 then faced was the existence of the "early disposition," or 6 "fast-track," federal sentencing program. 7 existed since 2003 when Congress "instructed the United States 8 Sentencing Commission to issue a policy statement authorizing a 9 downward departure pursuant to an early disposition program The program has 10 authorized by the Attorney General." 11 F.3d 158, 160 (2d Cir. 2006) (citations and internal quotation 12 marks omitted). 13 14 15 16 17 18 19 20 21 United States v. Mejia, 461 As directed by Congress, the Sentencing Commission adopted U.S.S.G. § 5K3.1 . . . which provides that, "[u]pon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides. 22 Id. at 161 (emphasis added). 23 program was in force in thirteen of the ninety-four federal 24 districts: 25 Northern districts); Idaho; Nebraska; New Mexico; North Dakota; 26 Oregon; Texas (Southern and Western districts); and the Western 27 District of Washington. 28 effect in the Northern District of New York. 29 At last count, the fast-track Arizona; California (Central, Southern, Eastern, and Id. The fast-track program is not in Sentencing of Liriano-Blanco 4 1 The parties and the probation office made written 2 submissions to the district court with regard to Liriano-Blanco's 3 sentencing. 4 to be 57 to 71 months, based upon an offense level of 8, under 5 U.S.S.G. § 2L1.2(a), a 16 level enhancement under § U.S.S.G. § 6 2L1.2(b)(1)(A)(I) based upon Liriano-Blanco s prior felony 7 conviction, and a criminal history category of IV. 8 Blanco argued, however, that a non-Guidelines sentence was 9 available and should be imposed "to avoid the disparity caused by The Probation Office calculated the Guidelines range Liriano- 10 the existence of fast-track programs in other districts." 11 Sentencing Mem., dated April 26, 2005 [sic], at Point II.A. 12 Def.'s On May 8, 2006, some three months after Liriano- 13 Blanco's plea hearing, the district court conducted a brief 14 sentencing hearing. 15 Guidelines sentencing in the district courts in illegal-reentry 16 cases. 17 18 19 20 21 22 23 24 The court commented generally on non- The court concluded: [I]nstead of sentencing you today, we're gonna look into those things, we're gonna examine the new case law, I'm gonna take under advisement the things I'm telling you about today and then, fairly quickly, hopefully within a couple weeks, we'll bring you back and I'll hear arguments and I'll sentence [you]. 25 Tr. of Sentencing Hearing, May 8, 2006, at 6. 26 mention of the possibility of an appeal or of the appeal waiver 27 that was in force. 28 29 The court made no The sentencing hearing was reconvened on June 13, 2006. At the outset, the district court said: 5 1 2 3 4 5 6 7 8 No matter which way I go in this case, . . . I am gonna offer the other side a certificate of appealability, so I will immediately sign it. . . .[2] I would like to see what the Second Circuit says about it. I know what other courts and other Circuits say, but I would like guidance from a non-Fast Track circuit. Tr. of Sentencing Hearing, June 13, 2006, at 9. 9 The court then entertained argument from both sides. 10 Most of the discussion was about the disparity between the 11 Guidelines sentence for Liriano-Blanco and the lower Guidelines 12 sentence that would have been available to him had he crossed the 13 border into one of the fast-track jurisdictions instead of the 14 Northern District of New York. 15 Toward the end of the proceeding, the court expanded on 16 its introductory remarks about sentencing disparities and the 17 fast-track program. 18 19 20 21 22 23 24 25 26 Now, if I thought I could follow my own individual predilections, if I could follow my emotions and my heart, I would go down four levels and say I'm gonna sentence him there. But I don't think I can do that. . . . That's what I did [when I sat by designation] in Laredo, [Texas,] on two separate occasions, and in Midland, [Texas,] because they have the Fast Track Program. 27 28 Here, we don't have it. It does cause disparity, but I think it is important that 2 We are not quite certain what the district court meant by "a certificate of appealability." Ordinarily, we use the term to refer to the certificate granted by a district court, circuit judge, or a justice that permits a person whose petition or application for habeas corpus relief has been denied by the district court to appeal it to the court of appeals. See, e.g., 28 U.S.C. § 2253(c); Lozada v. United States, 107 F.3d 1011, 1015-16 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). 6 1 2 3 4 5 Congress did incorporate that into The [PROTECT] Act, and I think the First Circuit made that call and was persuaded by that precedent. I am persuaded by the way they arrived at that. 6 Id. at 22-23. 7 offense level to be 21, and granted a departure from the 8 recommended criminal history level of IV to a category III. 9 court calculated the resulting range to be 46 to 57 months and 10 The district court then found Liriano-Blanco s The sentenced Liriano-Blanco to a term of 46 months. 11 Shortly thereafter, the district court returned to the 12 issue of a possible appeal. 13 Circuit may disagree with me and be able to give a lesser 14 sentence when they send it back, but I don't know." 15 27. 16 have the right to appeal this sentence under certain 17 circumstances. 18 issue, if applied for, a certificate of appealability." 19 28. 20 "to file any appeal [he] . . . plan[ned] to take within 10 days 21 of the date of th[e] sentence." 22 "Hopefully, maybe, the Second Id. at 26- "Both you [referring to Liriano-Blanco] and the Government And the Court has already indicated it would Id. at The court told Liriano-Blanco, finally, that he was required Id. In fact, of course, Liriano-Blanco had consented to an 23 appeal waiver as part of his plea agreement. 24 corrected the district court's misimpression, despite the fact 25 that the court referred to its expectation of an appeal 26 repeatedly, and the possibility of an appeal appeared to be an 27 integral part of the judge's reasoning in arriving at a 28 sentencing decision. 7 No one present 1 Liriano-Blanco's Appeal 2 On June 20, 2006, Liriano-Blanco filed a notice of 3 appeal. 4 appeal with that of one José Duran-Ferreira -- who had traveled 5 into the United States, and was arrested, with Liriano-Blanco -- 6 had failed, he filed his brief. 7 On October 6, 2006, after his efforts to consolidate the In the interim, on August 22, 2006, we decided Mejia. 8 We concluded: "We join other circuits in holding that a district 9 court's refusal to adjust a sentence to compensate for the 10 absence of a fast-track program does not make a sentence 11 unreasonable." 12 us in Mejia, and did not address, the question presented in 13 Liriano-Blanco's case: whether the district court has the 14 authority to impose a non-Guidelines sentence in response to the 15 fast-track sentencing disparity if it deems such a reduced 16 sentence to be warranted. 17 Mejia, 461 F.3d at 164. We did not have before On October 13, 2006, the government moved to dismiss 18 Liriano-Blanco's appeal on the ground that he had waived his 19 right to appeal in the plea agreement. On December 22, 2006, a 20 panel of this Court denied the motion. Our order reads: 21 22 23 24 25 26 27 28 29 30 The Government moves to dismiss defendantappellant's case on the ground that LirianoBlanco entered into a clear and enforceable appellate waiver, and that he knowingly and voluntarily acknowledged his waiver of his right to appeal. Upon due consideration, the Government's motion is DENIED. LirianoBlanco argues that the district court's comments during sentencing regarding the availability of appeal amounted to a de facto 8 1 2 3 4 5 striking and/or rejection of the appeal waiver as contained in the plea agreement. We have not addressed precisely this issue. Cf. United States v. Fisher, 232 F.3d 301, 304 (2d Cir. 2000). 6 United States v. Liriano-Blanco, 2d Cir., No. 06-2919-cr, Order 7 dated Dec. 22, 2006.3 DISCUSSION 8 9 We note at the outset that if Liriano-Blanco were able 10 to lodge an appeal challenging the district court's perception of 11 its power to issue downward departures without fast-track 12 authorization, such an appeal would not be frivolous. 13 we concluded in United States v. Mejia that a sentencing court is 14 not required to account for the fast-track disparity by imposing 15 a non-Guidelines sentence, Mejia, 461 F.3d at 164, we did not 16 foreclose the possibility that a court has the legal authority to 17 impose, in its discretion, a non-Guidelines sentence on that 18 basis. 19 rationale or otherwise. 20 foregone conclusion. 21 we can reach this question despite the appeal waiver to which 22 Liriano-Blanco consented as part of his plea agreement. Although Perhaps it does not, under an extension of the Mejia But the answer to that question is not a The issue for us now, therefore, is whether 3 Meanwhile, this Court ordered counsel for Duran-Ferreira to respond to the government's similar motion to dismiss DuranFerreira's appeal. Our order in Liriano-Blanco was not brought to the attention of the panel to which the motion was assigned. The motion to dismiss was granted by another panel on February, 16, 2007. United States v. Duran-Ferreira, 2d Cir., No. 06-3003cr, Order dated Feb. 16, 2007. 9 1 "Plea agreements that include a waiver of a defendant's 2 right to appeal his conviction and sentence are a relatively 3 recent phenomenon. 4 of such waivers, with the obvious caveat that such waivers must 5 always be knowingly, voluntarily, and competently provided by the 6 defendant." 7 Cir. 2000) (citing cases). 8 power to examine the circumstances surrounding the plea agreement 9 to assure ourselves that these conditions are met. 10 This Court has repeatedly upheld the validity United States v. Gomez-Perez, 215 F.3d 315, 318 (2d We have assumed that we have the See id. Liriano-Blanco does not dispute, however, that he 11 entered his plea agreement knowingly, voluntarily, and 12 competently. 13 agreement in light of the district court's stated assumption that 14 he did have a right to appeal. 15 What he does challenge is the validity of that Under Federal Rule of Criminal Procedure 32(j)(1)(B), 16 "[a]fter sentencing--regardless of the defendant's plea--the 17 court must advise the defendant of any right to appeal the 18 sentence." 19 it is difficult to believe it did not understand -- "'that advice 20 as to a right to appeal a sentence need be given only when such a 21 right exists. 22 was never created in the first place, or because it was created 23 and then waived.'" 24 (2d Cir. 2000) (quoting United States v. Tang, 214 F.3d 365, 369 25 (2d Cir. 2000)). 26 give 'unqualified advice concerning a right to appeal'" in "cases But "'Congress seems to have understood'" -- indeed [And a] right might not exist either because it United States v. Fisher, 232 F.3d 301, 303 Indeed, Tang urged sentencing judges "not to 10 1 where a waiver of appellate rights is of the type we have ruled 2 enforceable and [said wavier] has been fully explained to the 3 defendant at the time of the plea." 4 214 F.3d at 370). 5 Id. at 303 (quoting Tang, It is, nonetheless, not uncommon for a district judge 6 to notify a defendant at sentencing of his or her right to 7 appeal, momentarily unaware that that right has been waived. 8 This may result from Rule 32(j)(1)(B)'s requirement of notice 9 coupled with the fact that the waiver of appeal contained in a 10 plea agreement may be of little or no relevance to the sentencing 11 proceeding. 12 hearing and sentencing -- in this case, more than three months -- 13 makes such an error all the more likely. 14 (observing that "[s]ome four months" elapsed between the district 15 court's taking of the guilty plea, at which it discussed the 16 appeal waiver, and the sentencing hearing, at which it mistakenly 17 advised the defendant of his right to appeal). 18 And the time that usually elapses between a plea Cf. id. at 302 As a general matter, however, "a district judge's 19 post-sentencing advice suggesting, or even stating, that the 20 defendant may appeal" does not "render[] ineffective" an 21 "otherwise enforceable waiver of appellate rights." 22 (concurring with the conclusion of the Fifth, Seventh, Eighth, 23 and Tenth Circuits). 24 does not lose its effectiveness because the district judge gives 25 the defendant post-sentence advice inconsistent with the waiver." 26 Id. at 304-05 (footnote omitted). Id. at 304 "If enforceable when entered, the waiver 11 In Fisher, as in this case, 1 "[n]o justifiable reliance has been placed [by the defendant] on 2 such advice." 3 Id. at 305. Liriano-Blanco's appeal waiver is therefore effective 4 to bar his appeal of the district court's conclusion that a non- 5 Guidelines sentence is unavailable despite the "fast track" 6 disparity. 7 That is not the end of the matter, however. Our 8 concern regarding mistaken statements by a sentencing judge about 9 the defendant's right to appeal has typically focused on the 10 possibility that such bad advice may "'precipitate some needless 11 appeals,'" id. at 303 (quoting Tang, 214 F.3d at 370). 12 there has been concern, too, about false expectations of the 13 possibility of appeal engendered in those who are being 14 sentenced. 15 unnecessary proceedings and false hope. 16 Liriano-Blanco's right to appeal may have directly affected the 17 length of the sentence imposed on him. 18 expressed its view that a more lenient sentence might be 19 appropriate but that it harbored doubts about whether under the 20 applicable law it could impose that sentence. 21 chose not to depart from the Guidelines and imposed a sentence of 22 46 months. 23 appeal in choosing the higher sentence, apparently unaware that 24 Liriano-Blanco had waived the ability to pursue such an appeal. 25 26 Perhaps In this case, however, there is more at stake than The mistake as to The court explicitly The court then The district court relied on the possibility of Heightening our concern in Liriano-Blanco's case is the fact that, notwithstanding his awareness of this reliance, the 12 1 Assistant United States Attorney who appeared at Liriano-Blanco's 2 sentencing did nothing to disabuse the district court of its 3 misapprehension that an appeal by Liriano-Blanco remained 4 possible. 5 discussed the obligation of district courts to advise defendants 6 of their right to appeal, we have noted prosecutors' obligations 7 at sentencing under a plea agreement containing an appeal waiver. 8 As we said in Fisher: 9 10 11 12 13 14 15 16 17 In at least two of the cases in which we have We will continue to expect prosecutors to alert district judges at sentencing to the existence of appellate waivers, see Tang, 214 F.3d at 370, both to provide an opportunity to clarify any ambiguity as to the scope of such waivers, and to afford district judges an opportunity to fashion any advice concerning possible appellate rights in light of the terms of the waiver. 18 Fisher, 232 F.3d at 305. Our cases have not imposed the same 19 duty on defense counsel, and we have never suggested that the 20 silent presence of defense counsel excuses the government's 21 counsel's failure to speak up under these circumstances.4 4 That may reflect "the special role played by the American prosecutor . . . ." Strickler v. Greene, 527 U.S. 263, 281 (1999) ("[T]he United States Attorney is 'the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" (quoting Berger v. United States, 295 U.S. 78, 88 (1935))). It may also be deemed preferable not to require defense counsel, who may one day challenge an appeal waiver, to acknowledge the waiver's effect in open court, but instead place responsibility for acknowledging the existence of an appeal waiver on the party that intends to enforce it. 13 1 Plea agreements are generally treated as contracts. 2 Matters outside of the bargain between the parties are not 3 covered. 4 agreement, a sentencing decision could be reviewed on appeal if 5 it was reached in a manner that the plea agreement did not 6 anticipate. 7 1995), for example, we held that "a sentence tainted by racial 8 bias could not be supported on contract principles, since neither 9 party can be deemed to have accepted such a risk or be entitled In past cases we have thus held that despite a plea In United States v. Yemitan, 70 F.3d 746 (2d Cir. 10 to such a result as a benefit of the bargain." 11 Along these lines, we think, Liriano-Blanco cannot be "deemed to 12 have accepted [the] risk" that the judge sentencing him would do 13 so based on the judge's mistaken impression that his sentencing 14 decision could be appealed. 15 Blanco's appeal on the merits, then, we conclude that the waiver 16 does not explicitly or implicitly bar us from returning this 17 matter to the district court, so that, having been made aware 18 that Lirirano-Blanco cannot appeal its decision, it may 19 resentence him if it sees fit to do so. 20 Id. at 748. Although we cannot decide Liriano- We do not know what the district court might have done 21 had it been corrected at the time of sentencing as to its 22 mistaken view that Liriano-Blanco was entitled to appeal the 23 decision of law upon which the court based the sentence. 24 we will not suggest in advance our views on a matter not before 25 us, we do note, as we did at oral argument, the possibility that 26 if the court had departed from the Guidelines range and imposed a 14 While 1 sentence below 46 months, and left it to the government, not 2 Liriano-Blanco, to appeal, that could have provided a means for 3 the district court to obtain this Court's decision on the 4 unsettled issue which the district court found not only 5 troubling, but perhaps determinative. 6 We cannot be sure. Rather than guess as to what the district court would 7 have done had it been informed of the appeal waiver, we remand 8 the case to the district court for it to reconsider what further 9 steps, if any, it thinks warranted in light of Liriano-Blanco's 10 11 12 inability to appeal from the court's ruling. CONCLUSION For the reasons stated above, the district court s 13 sentence is reversed and the case remanded for further 14 consideration of the matter in accordance with this opinion. 15
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
