Of the District of New Hampshire, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 07-1238

07-1239

UNITED STATES OF AMERICA,

Appellee,

v.

VICTOR S. ACOSTA-ROMAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, U.S. District Judge]

Before

 Torruella and Lipez, Circuit Judges,

and DiClerico, Senior District Judge. *

Vivianne M. Marrero, with whom Joseph C. Laws, Jr., Federal

Public Defender, and Victor J. Gonzalez-Bothwell, Assistant Federal

Public Defender, were on brief for appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with

whom Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson

Pérez Sosa, Assistant United States Attorney, were on brief for

appellee.

November 24, 2008
Although Acosta pled guilty to laundering the proceeds of 1

illegal drug dealings and admitted that he knew the funds were the

proceeds of unlawful activity, he did not admit that he knew, at

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DICLERICO, District Judge. Victor Acosta-Roman pled

guilty, pursuant to a written plea agreement, to three money

laundering counts and received three concurrent fifty-seven month

sentences. On appeal, he contends that the district court erred

in adding a six-level enhancement under U.S.S.G. § 2S1.1(b)(1) and

that the waiver provision in his plea agreement does not bar his

appeal. The government contends that the appeal should be

dismissed because Acosta waived his right to appeal.

I. Background

In April of 2005, indictments were returned in two cases

charging Acosta, his wife, and others with conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956(h), substantive

money laundering in violation of 18 U.S.C. § 1956(a), and

conspiracy to import narcotics in violation of 21 U.S.C. § 952 and

§ 963. After the cases were consolidated, Acosta pled guilty to

two counts of conspiracy to commit money laundering and one count

of money laundering. In pleading guilty, Acosta admitted that from

August of 2002 through January of 2005, and from December of 2002

to October of 2004, he conspired with others to conduct financial

transactions involving the proceeds of illegal drug dealings, that

the transactions were designed to conceal the source of the

proceeds, and that he knew the proceeds were from unlawful activity

in violation of § 1956(h). He also admitted that on September 25, 1
the time, that illegal drug dealings were the source of the money

involved in those transactions.

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2003, he engaged in laundering $139,426.00 in violation of §

1956(a)(1)(B)(I) and § 1956(a)(2).

Acosta’s plea agreement recited the maximum penalties

applicable to those counts, warned that the court was not bound by

the plea agreement, and stated that the sentence would be left to

the court’s discretion. Acosta and the government agreed to

advisory guideline sentencing calculations that provided a base

offense level of eight, a twelve-level upward adjustment under

U.S.S.G. § 2B1.1(b)(1)(G), a two-level increase because of the

violation of § 1956, and a three-level downward adjustment for

acceptance of responsibility under U.S.S.G. § 3E1.1. They did not

agree on an adjusted offense level, and the agreement stated that

Acosta’s total offense level would be determined by the court at

sentencing based upon the court’s rulings on “certain sentencing

factors.”

The plea agreement further provided that at sentencing

the government would argue in favor of a six-level enhancement

under U.S.S.G. § 2S1.1(b), while Acosta would argue against the

enhancement. The agreement included a provision titled “WAIVER OF

APPEAL,” which provided that “[t]he defendant hereby agrees that if

this Honorable Court accepts this agreement and sentences hi[m]

according to its terms and conditions, defendant waives and
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surrenders [his] right to appeal the conviction and sentence in

this case.”

The sentencing hearing took place over a period of four

days. The court addressed the enhancement issue under U.S.S.G. §

2S1.1(b), which provides for an increase of six levels if the

defendant knew or believed that any of the laundered funds were the

proceeds of, among other things, an offense involving illegal

drugs. The government presented the testimony of two DEA

undercover agents, Diaz and Rivera, who participated in the

investigation that led to Acosta’s arrest. They testified about

the money laundering operations and the circumstances that

implicated Acosta. In particular, the agents testified about

Acosta’s involvement, with his wife, in delivering large amounts of

cash on three occasions.

Acosta also testified at the hearing. He admitted that

he knew the money was obtained unlawfully, but he denied any

knowledge of the source of the money. He also denied the

circumstances described by Agent Rivera, which suggested that he

would have knowledge that the money was drug proceeds.

Based on the evidence presented during the sentencing

hearing, the court concluded that Acosta’s testimony, denying

knowledge of the source of the money, was not credible. The court

credited Agent Rivera’s testimony and concluded, by a preponderance

of the evidence, that Acosta knew the money he delivered for

laundering was illegal drug proceeds. The court imposed a six-
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level enhancement under § 2S1.1(b). Acosta was sentenced to three

fifty-seven month terms to be served concurrently.

II. Discussion

On appeal, Acosta contends that the district court erred

in applying the six-level enhancement under U.S.S.G. § 2S1.1(b)

because the evidence did not support a finding that he knew the

money he delivered for laundering was illegal drug proceeds. He

argues that the waiver of appeal provision in his plea agreement

does not bar his appeal because the waiver applies only to the

terms and conditions of the agreement and not to the enhancement

imposed at sentencing. The government asserts that the waiver

applies and that the appeal must be dismissed.

Before considering the merits of Acosta’s claim, we must

determine whether the waiver of appeal provision is enforceable

under the circumstances of this case. United States v. Miliano,

480 F.3d 605, 607 (1st Cir. 2007). “‘[U]nder ordinary

circumstances, a knowing, voluntary waiver of the right to appeal

from a sentence, contained in a plea agreement, ought to be

enforced.’” United States v. Cardona-Diaz, 524 F.3d 20, 22 (1st

Cir. 2008) (quoting United States v. Teeter, 257 F.3d 14, 23 (1st

Cir. 2001)). When its validity is challenged, a waiver is tested

by considering whether the waiver statement and its scope are

sufficiently clear, whether the district court questioned the

defendant as to his understanding of the waiver and informed him of

its ramifications, and whether enforcing the waiver would cause a
At oral argument, counsel addressed the waiver under contract 2

principles and explicitly declined to pursue any issue that the

waiver was invalid or that enforcement would constitute a

miscarriage of justice.

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miscarriage of justice. United States v. Chandler, 534 F.3d 45, 49

(1st Cir. 2008).

In this case, however, Acosta does not challenge the

validity of his waiver or assert that its enforcement would work a

miscarriage of justice. Cf. United States v. Edelen, 539 F.3d 83, 2

85 (1st Cir. 2008) (defendant argued waiver was involuntary and

unknowing); Chandler, 534 F.3d at 49 (defendant argued district

court’s description of waiver inadequate); Cardona-Diaz, 524 F.3d

at 22-23 (defendant argued miscarriage of justice). Instead,

Acosta asserts that under its terms, the waiver does not apply to

his appeal of the U.S.S.G. § 2S1.1(b) enhancement issue.

“Even a knowing and voluntary appeal waiver only

precludes appeals that fall within its scope.” United States v.

McCoy, 508 F.3d 74, 77 (1st Cir. 2007). “[T]he scope of the waiver

is simply a matter of what the parties agreed to in the particular

case.” Id. Plea agreements are construed under basic contract

principles. United States v. Newbert, 504 F.3d 180, 185 (1st Cir.

2007).

The waiver provision in Acosta’s plea agreement states

that he waived his right to appeal his conviction and sentence “if

the Honorable Court accepts this agreement and sentences [Acosta]
We have previously determined that the same waiver provision 3

is “simple and easily understood” and “clear and self-evident on

its face.” United States v. Borrero-Acevedo, 533 F.3d 11, 14 & 17

(1st Cir. 2008), cert. denied, --- S. Ct. ---, 2008 WL 4580034

(Nov. 10, 2008). Nevertheless, the frequency of appeals involving

waivers suggests that waiver provisions should make specific

reference to any terms and conditions of the plea agreement that

are not intended by the parties to be covered by the waiver.

Hopefully, such specificity would reduce the number of appeals in

which plea agreement waivers are at issue.

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according to its terms and conditions.” Acosta contends that the 3

waiver does not apply to the U.S.S.G. § 2S1.1(b) enhancement

because the enhancement was not a term or a condition of the plea

agreement.

In Section 7, the agreement addresses “Sentencing

Guideline Calculations” and provides specific sentencing terms and

conditions. The government and Acosta agreed to a base offense

level, an upward adjustment based on the amount of the loss, an

increase in the base offense level due to a violation of § 1956,

and a downward adjustment for acceptance of responsibility. They

also agreed, at Subsection 7(d), that at the time of the

sentencing, they would each argue their differing positions on the

U.S.S.G. § 2S1.1(b) enhancement issue. In Subsection 7(f), the

parties agreed that Acosta’s total offense level would be

“determined at sentencing based on the Court’s ruling on certain

sentencing factors.”

At the sentencing hearing, the government and Acosta

presented evidence and argument concerning the enhancement issue,

as contemplated by the plea agreement. No issue has been raised
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here challenging the adequacy of Acosta’s opportunity to be heard

during the hearing. The court ruled, based on the evidence and

arguments presented during the sentencing hearing, that Acosta knew

the laundered funds were illegal drug proceeds. Based on its

ruling, the court imposed a six-level enhancement under U.S.S.G. §

2S1.1(b).

Taking the language of the plea agreement as a whole,

there is nothing to suggest that the parties’ agreement at

Subsection 7(d), to argue the enhancement issue at the sentencing

hearing, was not a term or condition of the plea agreement.

Further, the agreement did not guarantee a particular outcome on

the enhancement issue and instead provided that the total offense

level would be determined at sentencing, based on the court’s

ruling on certain sentencing factors, which were left to the

discretion of the court. In imposing sentence after the parties

had the opportunity to argue the enhancement issue, the court

complied with the condition agreed to in Subsection 7(d). 

Therefore, the sentence, including the six-level enhancement under

U.S.S.G. § 2S1.1(b)(1), was imposed according to the terms and

conditions of the plea agreement.

III. Conclusion

For the foregoing reasons, Acosta’s waiver is both valid

and enforceable as to the enhancement issue, and therefore,

appellate consideration of that issue, on the merits, is barred.

The appeal is dismissed.