United States Court of Appeals

For the First Circuit

No. 13-1060

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE RIVERA-LÓPEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Baldock,* and Thompson,

Circuit Judges.

Miriam Ramos-Grateroles, for appellant.

Vincent J. Falvo, Jr., Attorney, Appellate Section, U.S.

Department of Justice, with whom Mythili Raman, Acting Assistant

Attorney General, Denis J. McInerney, Acting Deputy Assistant

Attorney General, Víctor Acevedo, Assistant U.S. Attorney, District

of Puerto Rico, and Michael C. Bagge, Assistant U.S. Attorney,

District of Puerto Rico, was on brief for appellee.

November 25, 2013

*

 Of the Tenth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Facing a five count indictment

on narcotics and firearm charges, Jorge Rivera-López ("Rivera")

entered into a plea agreement containing a waiver-of-appeal

provision. Pursuant to that agreement, he was sentenced to sixty

months of imprisonment and a five-year term of supervised release. 

For the first six months of his supervised release, Rivera's

sentence also included a nighttime curfew and twenty-four-hour

electronic monitoring. He now seeks to appeal these two conditions

of supervised release, arguing that their imposition amounts to a

miscarriage of justice. Upon review, we find that Rivera's

appellate waiver extends to the contested conditions and,

consequently, dismiss his appeal.

I. Background

In August 2012, Puerto Rico Police Department officers

executed a search warrant of an apartment in which Rivera was

sleeping. Inside, the officers found two firearms and multiple

controlled substances. An indictment followed, charging Rivera and

his two co-defendants each with four counts of possession with

intent to distribute controlled substances, in violation of 21

U.S.C. § 841(a)(1), and one count of possession of a firearm in

furtherance of a drug crime, in violation of 18 U.S.C. § 924(c)

(1)(A)(i-ii).

Rivera subsequently entered into a plea agreement,

admitting guilt as to the firearms charge. In exchange for this

-2-
guilty plea, the government recommended that all four counts of

narcotics possession be dismissed and that Rivera be sentenced to

a term of sixty months of imprisonment. Under a provision titled

"Maximum Penalties," the agreement made clear that Rivera faced "a

minimum term of imprisonment of five [] years and a maximum term of

life in prison" as well as "a supervised release term of not more

than five [] years." Another provision, titled "Waiver of Appeal,"

stated that Rivera would not seek appellate review of any "judgment

and sentence" that was in accordance with the agreement's terms and

recommendations.

The district court imposed the recommended term of sixty

months of imprisonment as well as a five-year term of supervised

release. For the first six months of supervised release, the court

further required Rivera to comply with curfew and electronic

monitoring conditions:

[Rivera] shall remain under curfew at his

residence of record from 6:00 pm to 6:00 am

for a period of six [] months to commence upon

his release from imprisonment. During this

time, he shall remain in his place of

residence, except for employment or other

activities approved in advance by the

probation officer. The defendant shall

maintain a telephone at his residence without

a modem, an answering machine, or a cordless

feature during the term of electronic

monitoring. He shall wear an electronic

device 24 hours a day . . . . He is ordered

to pay the daily cost of [the] Electronic

-3-
Monitoring Device, according to his ability to

pay it.1

Rivera objected at sentencing, arguing that the

conditions were insufficiently related to the crime charged and

inconsistent with the sentences of his co-defendants, which did not

include curfew or electronic monitoring conditions. The district

court judge responded that "[i]n my courtroom, all gun cases

receive [these] condition[s]."

1 In his appellate brief, Rivera styled the requirement that he

maintain a phone line without a modem as a ban on home internet

use. In its briefs, the government did not contest this

construction of the issue and, in fact, wholly failed to discuss or

address the purported "internet ban." The government's position

was not elucidated until oral argument, where it asserted, for the

first time, that this condition was not an internet ban, but served

only the more limited purpose of ensuring a "clean" phone line for

electronic monitoring. As such, the government made clear its

belief that Rivera is free to maintain a second line with a modem

or to access the internet via any other available method throughout

his term of supervised release. Pursuant to our request, on

November 6, 2013 the government filed a letter with the court --

now part of the official docket -- restating this position in

writing. Therefore, while we note in passing the limits this court

has placed on the scope of internet bans, requiring a significant

nexus between internet use and the crime committed, see United

States v. Perazza-Mercado, 553 F.3d 65 (1st Cir. 2009), we see no

need to address the argument further. Rather, we interpret the

condition as the government asserts we should: not as a ban on

internet use, but only as a requirement that Rivera maintain a

"clean" phone line. Indeed, the condition's language affirmatively

commands one particular action (i.e., the maintenance of a certain

type of phone line), but does not expressly prohibit any other,

including that of accessing the internet from home. Because

sentencing judges know well how to construct bans on internet use,

we trust that they will continue to do so explicitly when such

conditions are appropriate. Moreover, when imposing conditions of

electronic monitoring in the future, we expect that they will take

care to disabuse defendants of the mistaken but plausible

interpretation of this provision adopted by Rivera.

-4-
Rivera now seeks to appeal these same conditions,

reasserting his objections below. Acknowledging that his

waiver-of-appeal was knowing and voluntary, he nonetheless asks

this court to vacate the conditions so as to avoid a miscarriage of

justice.

II. Discussion

Where knowing and voluntary, an appellate waiver is

generally enforceable, absent indications that such a waiver would

work a "miscarriage of justice." United States v. Teeter, 257 F.3d

14, 25 (1st Cir. 2001). We have declined to strictly delineate the

boundaries of this miscarriage-of-justice exception, choosing

instead to review claims wholesale, with an eye to the "character,

clarity, and gravity of the claim of error." United States v.

Nguyen, 618 F.3d 72, 75 (1st Cir. 2010) (recognizing that "[t]he

circumstances potentially justifying a refusal to enforce a waiver

on this ground are 'infinitely variable'" (quoting Teeter, 257 F.3d

at 25 n.9)). What is clear, however, is that the exception is to

"be applied sparingly and without undue generosity"; mere "gardenvariety" claims of error are insufficient to sustain an appeal in

the face of waiver. Teeter, 257 F.3d at 26; see also United States

v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007) (requiring, to

overcome an appellate waiver, "an increment of error more glaring

than routine reversible error").

-5-
Rivera readily concedes that his decision to enter into

the plea agreement, including the waiver of appeal, was both

knowing and voluntary. He also admits that the district court made

sure he understood the nature of this waiver. Therefore, we take

up only the limited question of whether the contested conditions

amount to a miscarriage of justice. See Nguyen, 618 F.3d at 75.

Sentencing judges have broad discretion to impose

conditions of release so long as they are "reasonably related" to

(1) the underlying offense or character and criminal history of the

defendant; (2) the need to deter criminal conduct; (3) the goal of

protecting the public; or (4) the provision of rehabilitative

educational, health, or other treatment for the defendant. 

U.S.S.G. § 5D1.3(b); see also 18 U.S.C. § 3583(d); United States v.

Brown, 235 F.3d 2, 6 (1st Cir. 2000) ("[T]he critical test is

whether the challenged condition is sufficiently related to one or

more of the permissible goals of supervised release."). Such

conditions must also "involve no greater deprivation of liberty

than is reasonably necessary." U.S.S.G. § 5D1.3(b); see also 18

U.S.C. § 3583(d)(2).

Rivera's argument is twofold. First, that the imposition

of the curfew and electronic monitoring conditions circumscribes

his liberty to a greater extent than necessary or appropriate. 

Second, that the district court lacked any reasoned basis for these

conditions, as illustrated by the inconsistent sentences of

-6-
Rivera's co-defendants and the overly broad statement that "all gun

cases" are subject to the same. In combination, he asserts that

these errors are of such significance that allowing his appellate

waiver to stand would shield from our review a miscarriage of

justice.

As an initial matter, the co-defendants' sentences are

not before us on this appeal, and therefore we decline to speculate

as to why the same conditions were not imposed on those

individuals. When "identically situated defendants" receive

significantly disparate sentences, red flags may indeed be raised. 

United States v. Mueffelman, 470 F.3d 33, 41 (1st Cir. 2006). 

Where supported by reason, however, the mere existence of a

disparity in sentencing between co-defendants in no way

necessitates a finding of error. See, e.g., United States v.

Marceau, 554 F.3d 24, 33-34 (1st Cir. 2009). Certainly, no such

finding is required here, as Rivera did not even attempt to

substantiate his miscarriage-of-justice claim with proof that he

and his co-defendants were, in fact, identically situated. 

Therefore, we focus our review only on whether the conditions of

Rivera's supervised release were so lacking in rationality or so

wholly unrelated to legitimate sentencing purposes as to

necessitate invalidating his waiver of appeal.

Even setting aside the district court's proffered

explanation that "all gun cases" receive the special conditions in

-7-
question,2 the record suggests an alternative basis for their

imposition in Rivera's case. See United States v. Garrasteguy,

559 F.3d 34, 42 (1st Cir. 2009) ("[The] requirement [that

conditions be supported] can be satisfied without a written or oral

explanation . . . if we can infer the court's reasoning by

comparing what was argued by the parties or contained in the presentence report with what the court did." (citing United States v.

Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc)). At

sentencing, Rivera presented his long history of significant

substance abuse, failed treatment attempts, and suicidality as

factors in support of mitigation. He also requested that the

district court recommend him for participation in an appropriate

drug treatment program and receipt of mental health care while

incarcerated. In light of Rivera's choice to draw the court's

attention to his history of drug abuse and failed treatment

attempts, the curfew and electronic monitoring conditions can be

understood as efforts to assist in his rehabilitation.

Because of the waiver of appeal at play in this case, see

Miliano, 480 F.3d at 608 (requiring more than reversible error to

sustain a finding of a miscarriage of justice), we need not plumb

2

 Noting the serious nature of the firearms charge, we might have

simply considered whether the conditions were a permissible

response to that conviction. Because Rivera has called our

attention to the disparity between the district court's claim that

all gun cases receive these conditions and the sentences of his codefendants, however, we review the record to see if there exists a

reasoned rationale for that distinction.

-8-
the exact contours of a court's ability to impose such special

conditions. In fact, we explicitly decline to suggest that such

conditions, if squarely before us on appeal, would necessarily be

found appropriate, as we can easily conceive of instances where

past substance abuse is so unrelated to the crime charged or

separated by a sufficient passage of time as to make these

conditions unwarranted. See Brown, 235 F.3d at 7 ("The hallmark

that separates impermissible conditions from permissible ones is

whether, on a given set of facts, a particular restriction is

clearly unnecessary.").

As to the much simpler question of whether the conditions

are so clearly erroneous and unsubstantiated as to work a

miscarriage of justice, however, the answer is clear. They are

not. The miscarriage-of-justice standard is a steep obstacle for

potential appellants to overcome, see Teeter, 257 F.3d at 26, and

Rivera's history of drug abuse, charged conduct, and request for

treatment makes clear that the contested conditions are

sufficiently related to legitimate goals of sentencing as to fall

within the auspices of his waiver of appeal. Cf. Nguyen, 618 F.3d

at 76 (finding a condition of supervised release warranted, and

thus necessarily insufficient to overcome a waiver of appeal). 

Thus, we hold that Rivera's knowing and voluntary waiver of appeal

bars his instant challenge.

-9-
III. Conclusion

For the reasons stated herein, Rivera's appeal is

dismissed.

Dismissed.

-10-