United States Court of Appeals

For the First Circuit

No. 13–2525

UNITED STATES OF AMERICA,

Appellee,

v.

MARCOS ROJAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Thompson, Kayatta, and Barron,

Circuit Judges.

Raymond E. Gillespie on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate

Division, and John A. Mathews II, Assistant United States Attorney,

on brief for appellee.

March 11, 2015
BARRON, Circuit Judge. After reaching a plea agreement

with the government, Marcos Rojas pled guilty to failing to

register as a sex offender as required by the Sex Offender

Registration and Notification Act, or SORNA, 18 U.S.C. § 2250(a). 

The District Court sentenced Rojas to twelve months in prison. The

District Court also sentenced Rojas to ten years of supervised

release and imposed a number of special conditions of supervised

release. On appeal, Rojas challenges three of those conditions: a

requirement that he participate in a sex offender treatment

program, a requirement that he participate in a mental health

treatment program, and a prohibition on the possession of

pornography unless approved by Rojas's probation officer. 

We need not reach the substance of Rojas's appeal,

however, because of the "waiver of appeal" provision in Rojas's

plea agreement. Rojas concedes that he agreed knowingly and

voluntarily to accept that provision. See United States v. Teeter,

257 F.3d 14, 24 (1st Cir. 2001) ("The baseline for any waiver of

rights is that the defendant enter into it knowingly and

voluntarily."). And Rojas does not argue that, if the waiver

applies to his arguments in this appeal, the sentencing errors he

alleges amount to such a "miscarriage of justice" that we must

"relieve [him] of the waiver." Id. at 25. Rather, Rojas's sole

argument is that the scope of the waiver does not encompass the

challenges he brings on this appeal.

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Rojas grounds that argument in the text of the waiver of

appeal as read against the text of the plea agreement. 

Specifically, the plea agreement stated that the parties were

making no recommendation regarding conditions of supervised

release. And the waiver then provided:

[I]f [the District] Court accepts this Plea

Agreement and sentences the defendant

according to its terms, conditions and

recommendations, the defendant then waives and

permanently surrenders his right to appeal the

judgment and sentence in this case.

Rojas accordingly argues that the sentence -- by imposing

conditions of supervised release -- could not have been "according

to" the plea agreement's "terms, conditions and recommendations." 

And thus, Rojas argues, the waiver cannot bar him from appealing

the conditions of supervised release.

Rojas's proposed construction would appear to render the

entirety of the waiver ineffective upon the imposition of any

condition of supervised release, as the waiver's text does not

appear to permit a defendant to appeal only those aspects of a

sentence that are not "according to" the plea agreement. And it is

hard to believe that the government, in entering into the plea

agreement, intended for the waiver to be contingent in that way.

But Rojas's argument is also unpersuasive for another

reason. He concedes that, if the plea agreement did not

specifically state that it contained no recommendation regarding

conditions of supervised release, then the waiver would apply and

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bar this appeal. And he must concede as much, because, as Rojas

acknowledges, we have held that this exact waiver language

precludes the appeal of conditions of supervised release when a

plea agreement says nothing about them. See, e.g., United States

v. Santiago, 769 F.3d 1, 7 (1st Cir. 2014); United States v.

Rivera-López, 736 F.3d 633, 634-35 (1st Cir. 2013).

But if that is so, this case is no different. The plea

agreement here merely included a clause that stated expressly what

the silence in those cases made equally clear -- that the plea

agreement made no recommendation regarding terms of supervised

release. In imposing conditions of supervised release, therefore,

the District Court imposed a sentence that was still "according to

the terms, conditions and recommendations" of that agreement. And

because, as Rojas concedes, his appeal of the supervised release

conditions is an appeal of the "judgment and sentence" in his case,

see Santiago, 769 F.3d at 7, this appeal falls within the scope of

the waiver. Rojas's appeal is therefore dismissed.

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