United States Court of Appeals

For the First Circuit

No. 13-1613

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUELITO ARROYO-BLAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch, Chief Judge,

Howard and Thompson, Circuit Judges.

Rick Nemcik-Cruz for appellant.

John A. Matthews II, Assistant United States Attorney, with

whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief,

Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States

Attorney, were on brief, for appellee.

April 15, 2015
THOMPSON, Circuit Judge. The ostrich's undeserved claim

to fame is that it buries its head in the sand instead of facing

danger.1 Parties to litigation sometimes act like this, too. Case

in point is our appellant, Miguelito Arroyo-Blas ("Arroyo-Blas"),

who by ignoring a plea agreement's clear waiver of appeal provision

fares no better here than we imagine our proverbial ostrich does

when confronted by a predator in the wild.

I. BACKGROUND

This case has its genesis in Arroyo-Blas's guilty plea

(pursuant to a written Plea Agreement) to Count I of a four-count

Indictment charging him and several others with various drug

crimes. In entering his plea, Arroyo-Blas admitted that he was an

organizer and leader of a drug conspiracy that imported five or

more kilograms of cocaine into Puerto Rico from June 2007 to

January 2010.

Center stage in this appeal is occupied by the Plea

Agreement, not the facts of the offense. The Agreement was made

pursuant to Federal Rules of Criminal Procedure 11(c)(1)(A) and

(C). Because these rules loom large over what's to come, we set

them out now.

1 "Not that ostriches really bury their heads in the sand when

threatened," Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934

(7th Cir. 2011), but the image persists. And it suits our purposes

well.

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Rule 11(c) provides, as important here, the following:

(1) In General. An attorney for the

government and the defendant's attorney . . .

may discuss and reach a plea agreement. The

court must not participate in these

discussions. If the defendant pleads guilty

or nolo contendere to either a charged offense

or a lesser or related offense, the plea

agreement may specify that an attorney for the

government will:

(A) not bring, or will move to dismiss,

other charges; 

. . . 

(C) agree that a specific sentence or

sentencing range is the appropriate 

disposition of the case, or that a 

particular provision of the Sentencing

Guidelines, or policy statement, or

sentencing factor does or does not apply

(such a recommendation or request binds

the court once the court accepts the plea

agreement).

Fed. R. Crim. P. 11(c). "Such a vehicle--a so-called C-type plea

agreement--allows the parties to bind the district court to a preagreed sentence if the court accepts the plea." United States v.

Rivera-Martínez, 665 F.3d 344, 345 (1st Cir. 2011).

Arroyo-Blas's Plea Agreement stated that he would plead

guilty to Count I and that the government would dismiss the

remaining counts against him. He agreed to "accept[]

responsibility for more than fifty (50) kilograms but less than one

hundred fifty (150) kilograms of cocaine" for sentencing purposes. 

The parties applied the agreed-upon drug quantity to the United

States Sentencing Guidelines ("Guidelines") to come up with a

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suggested offense level and sentencing range. The parties'

calculations factored in Arroyo-Blas's role as an organizer and

leader in the conspiracy as an aggravating circumstance, and his

acceptance of responsibility as a mitigating one. All told, the

drug quantity and adjustments translated to a Total Offense Level

of 35 and a sentencing range of 168-210 months, assuming that

Arroyo-Blas would be in Criminal History Category I.2

After calculating the Guidelines range, the "parties

agree[d] on a C-type range of 180 to 204 months of imprisonment,

where the defendant may argue for a sentence of 180 months of

imprisonment and the Government may argue for a sentence of 204

months of imprisonment."3 A separate section of the Plea Agreement

indicated that "[p]ursuant to Rule 11(c)(1)(C) of the Federal Rules

of Criminal Procedure defendant understands that the parties have

agreed to a specific sentence because all parties understand that

it is the appropriate disposition of this case." It further stated

that "[i]f the Court accepts this Plea Agreement, the Court is

bound by the parties['] sentencing recommendation."

2

 The Plea Agreement explicitly provided that "[t]he parties

make NO stipulation as to defendant's Criminal History Category." 

3 The parties agreed to the disposition of certain forfeiture

allegations, as well, but those are not germane to this appeal. 

The government also dismissed the other counts against Arroyo-Blas,

but we need not get into that either.

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The Plea Agreement also contained a waiver of appeal:

The defendant knowingly and voluntarily waives

the right to appeal the judgment and sentence

in this case, provided that the defendant is

sentenced in accordance with the terms and

conditions set forth in the Sentence

Recommendation of this PLEA AND FORFEITURE

AGREEMENT, that is, with a sentence within the

above-mentioned range of 180 to 204 months of

imprisonment.

At the change of plea hearing before a magistrate judge, ArroyoBlas answered with an unambiguous "Yes" when asked whether he

understood that he was agreeing to waive his right to appeal should

he receive a sentence in accordance with the "terms, conditions,

and recommendations" set forth in the agreement. The magistrate

judge recommended that Arroyo-Blas's plea pursuant to the Plea

Agreement be accepted, which the district judge did.4

The Presentence Investigation Report ("PSR"), prepared

after the district judge accepted Arroyo-Blas's guilty plea, set

forth the probation department's view of how the Guidelines should

apply. The PSR's calculations tracked those of the Plea Agreement

with respect to the nature of the offense and applicable

enhancements and adjustments. Unlike the Plea Agreement, the PSR

went on to address Arroyo-Blas's criminal history, which included

a conviction on a charge of failure to report monetary instruments. 

4

 In an eyebrow-raising move, the parties did not see fit to

include the transcript of the magistrate's hearing or a copy of the

report and recommendation in their joint appendix. This omission

put the onus on the Court to locate these materials in the district

court's docket.

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Thanks to this conviction, the PSR set Arroyo-Blas's Criminal

History Category at II, which called for a Guidelines sentence

between 188 and 235 months.

At sentencing, the district judge recognized right off

the bat that Arroyo-Blas's "type-C plea . . . allows for a sentence

within that range of 180 to 204 months." The judge expressed his

understanding that he could "sentence [Arroyo-Blas] anywhere . . .

in between that range." Defense counsel replied by saying, "[w]e

understand that, Your Honor."

Defense counsel's main argument at sentencing--and one he

continues to press on appeal--was that Arroyo-Blas's Criminal

History Category should be I, not II. The district judge disagreed

and decided "to consider that [Arroyo-Blas has] a criminal history

category [of] II which doesn't alter in any way your plea agreement

because the plea agreement allows for the Court to sentence him

anywhere between 180 and 204" months. Thus, the district judge

didn't consider the Criminal History Category's interaction with

the Guidelines range--168-210 months with it set at I, and 188-235

months at II--to have any effect on the actual range of time to

which Arroyo-Blas was exposed. Ultimately, after running through

the facts of the offense and taking Arroyo-Blas's personal history

and characteristics into account, the judge found "that a sentence

at the lower end of the applicable guideline range" was

appropriate, and imposed a 188-month sentence.

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This appeal followed.

II. DISCUSSION

Arroyo-Blas wants to be able to tell us that the district

judge erred in putting him in Criminal History Category II, which

subjected him to a higher Guidelines range. He believes this error

worked to his detriment, as by choosing 188 months, the district

judge clearly applied the bottom of the 188-235-month guideline

range. Had he been put in Category I, Arroyo-Blas believes he

would have received a shorter sentence.

The Plea Agreement's waiver of appeal, however, may bar

his appeal in its entirety. Accordingly, we must first conduct a

"threshold inquiry" to determine whether "[Arroyo-Blas's] appeal

falls within the scope of the waiver-of-appeal provision contained

in his plea agreement." United States v. Okoye, 731 F.3d 46, 49

(1st Cir. 2013).

When considering the scope of a waiver of appeal, "we

interpret the parties' agreement under basic contract principles." 

Id.; see also United States v. Ocasio-Cancel, 727 F.3d 85, 89 (1st

Cir. 2013) ("Plea agreements should be given their plain

meaning."). Should we find any ambiguities in the waiver

provision, we resolve them in favor of allowing the appeal to

proceed. Okoye, 731 F.3d at 49. But, "[i]f a plea agreement

unambiguously resolves an issue, that usually ends the judicial

inquiry." United States v. Alegria, 192 F.3d 179, 183 (1st Cir.

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1999). And, as in contract law, we will not "conjur[e] up an

ambiguity [in a plea agreement] where none legitimately exists." 

United States v. Anderson, 921 F.2d 335, 338 (1st Cir. 1990).

Despite the importance of the waiver of appeal issue,

Arroyo-Blas's opening brief fails to address it in any meaningful

way. Indeed, the only time it is mentioned is in his statement of

subject matter and appellate jurisdiction. And this treatment is

confined to just two sentences--one acknowledging the waiver's

existence, and the second making the conclusory statement that the

waiver does not "bar this appeal as the claimed errors are

misapplication of the Sentencing Guidelines"--followed by a

straight-up cite, with no explanation, to our opinion in United

States v. McCoy, 508 F.3d 74, 78 (1st Cir. 2007). He makes no

other argument as to why the waiver of appeal should not result in

dismissal of his appeal.

The government starts off its brief by telling us that we

should enforce the waiver of appeal. First, it takes aim at

Arroyo-Blas's briefing, saying that his argument about the waiver's

enforceability is so "cursory" that it has been waived. The

government then turns to the merits and explains why the waiver of

appeal is enforceable. Implicit throughout its brief is the idea

that the waiver applies because Arroyo-Blas's appeal falls within

its scope.

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Having reviewed the terms and scope of Arroyo-Blas's

waiver of appeal ourselves, they could hardly be more clear. 

Arroyo-Blas unambiguously agreed to waive his appeal provided he

was sentenced to prison for somewhere between 180 and 204 months. 

And that is exactly what happened. So it would appear that the

plain language of his waiver operates to bar this appeal.

The only case Arroyo-Blas cites in support of his

position that the waiver does not apply, United States v. McCoy,

508 F.3d 74 (1st Cir. 2007), is readily distinguishable. "Waivers

of appeal," we observed in McCoy, "vary considerably in their

language[,] and the scope of the waiver is simply a matter of what

the parties agreed to in the particular case." Id. at 77. The

plea agreement in McCoy provided for a waiver of appeal that "set[]

forth no proposed sentence or sentencing range." Id. at 78. 

Rather, the parties agreed that the government would "request

'[i]ncarceration within the guideline range.'" Id. (alteration in

original). This language, we found, "preclude[d] McCoy from

challenging any sentence that falls 'within the guideline range.'" 

Id.

But the parties in that case left open the question of

what that guideline range was. When McCoy appealed his sentence,

he argued that "by both a legal error and a mathematical mistake,

the district court mis-measured the loss [suffered by the victim of

his fraud] and so misapplied the guidelines." Id. This particular

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argument was not barred, we found, because if McCoy's position was

correct, "then his sentence was not 'within the guideline range.'" 

Id. The takeaway is that language in a plea agreement waiving the

right to appeal only when "'the sentence imposed . . . is within

the guidelines' does not waive the right to appeal an alleged

misapplication of the guidelines." Id. (quoting United States v.

Bowden, 975 F.2d 1080, 1081 n.1 (4th Cir. 1992)).

Arroyo-Blas's appeal waiver is quite different. Instead

of leaving the sentencing range up to the district judge's

determination, Arroyo-Blas and the government were right up front

about what they wanted: Arroyo-Blas agreed to waive any appeal

provided he received a sentence falling anywhere between 180 and

204 months in length. He quite clearly did not reserve the right

to appeal should the district judge place him in anything other

than Criminal History Category I. And, because it was a "C-type"

plea agreement, the parties knew that if the district judge

accepted it, it would be bound to impose a sentence within the

range agreed to by the parties. This is reflective of the parties'

overriding and pragmatic concern being the amount of jail-time

Arroyo-Blas would get.

As we have said, "[p]lea agreements should be given their

plain meaning." Ocasio-Cancel, 727 F.3d at 89. Because ArroyoBlas agreed to forgo an appeal should he be sent to jail anywhere

between 180 and 204 months, and because 188 months is within that

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range, we find that the waiver applies here to bar Arroyo-Blas's

appeal.

This brings an end to our analysis. After all, ArroyoBlas relied solely on his contention that the waiver of appeal does

not apply and eschewed any argument that the waiver, if applicable,

is unenforceable. Indeed, his opening brief did not even

acknowledge our key case dealing with an appeal waiver's

enforceability, United States v. Teeter, 257 F.3d 14 (1st Cir.

2001), nor did it address any of the factors we take into account

when deciding whether or not we should enforce the waiver, see

United States v. Edelen, 539 F.3d 83, 85 (1st Cir. 2008)

("[A]ppellate waivers are binding so long as: (1) the written plea

agreement clearly delineates the scope of the waiver; (2) the

district court inquired specifically at the plea hearing about any

waiver of appellate rights; and (3) the denial of the right to

appeal would not constitute a miscarriage of justice." (citing

Teeter, 257 F.3d at 25)). Arroyo-Blas's appellate strategy appears

to have been to ignore the waiver of appeal and hope that the

government wouldn't bring it up (and, apparently, that we wouldn't

notice it either).5

5 Arroyo-Blas's reply brief feints toward an argument about

enforceability, only to settle on repackaging his original argument

that the judge miscalculated the Guidelines range. He also throws

in a conclusory statement that, in his view, enforcing the appeal

waiver violates constitutional equal protection principles. Even

if these arguments had been sufficiently developed in his reply, it

would have done him no good anyway. This is because "it is well-

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At oral argument, when we pointed out his brief's abject

failure to engage with the waiver of appeal, counsel expressed his

understanding that a waiver of appeal is akin to an affirmative

defense and, therefore, need not be addressed unless and until the

government raises the issue. Counsel is mistaken. We have never

equated a waiver of appeal with an affirmative defense that need

not be addressed by an appellant's opening brief. Doing so would

be nonsensical given that a defendant is required to affirmatively

acknowledge his agreement to and understanding of an appeal waiver

provision. See Edelen, 539 F.3d at 85. Indeed, the very purpose

of an appeal waiver is to bar an appeal.

To that end, we have indicated that an appellant who

fails to make an argument with respect to an appeal waiver in his

opening brief risks waiving that issue. See United States v. LaraJoglar, 400 F. App'x 565, 570 (1st Cir. 2010) (per curiam) (stating

that an appellant who failed to brief a certain exception to the

enforcement of an appeal waiver "arguably waived the application of

that exception," but proceeding to find that enforcing the waiver

of appeal would not result in a miscarriage of justice); United

States v. Gil-Quezada, 445 F.3d 33, 37 (1st Cir. 2006) (finding we

could "simply end our inquiry" where a party failed to argue that

settled that a legal argument made for the first time in an

appellant's reply brief comes too late and need not be addressed." 

United States v. Brennan, 994 F.2d 918, 922 n.7 (1st Cir. 1993)

(internal quotation marks omitted).

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enforcing appeal waiver would cause a miscarriage of justice, but

attempting, "[i]n an abundance of caution . . . to sift the

rudiments of his claim from the record").

Let today's decision remove any lingering doubts. We

expect and require counsel to address a waiver of appeal head-on

and explain why we should entertain the appeal. An appellant who

fails to do this buries his head in the sand and expects that harm

will pass him by. "The ostrich is a noble animal, but not a proper

model for an appellate advocate." Gonzalez-Servin v. Ford Motor

Co., 662 F.3d 931, 934 (7th Cir. 2011).

True, in the past we have deigned to "sift the rudiments

of [the] claim from the record" when an appellant failed to make a

complete argument about an appeal waiver in his opening brief. 

Gil-Quezada, 445 F.3d at 37. Yet, nowhere does Arroyo-Blas say

that the scope of his waiver is unclear or that the district court

didn't do a good enough job of telling him what that waiver meant. 

He also fails to tell us why denying the right to appeal would work

a miscarriage of justice when his sentence falls on the lower end

of the 180-204-month range he agreed to. Simply put, Arroyo-Blas

has given us nothing to work with.

This failure of briefing brings to mind our words from

more than a quarter-century ago: "It is not enough merely to

mention a possible argument in the most skeletal way, leaving the

court to do counsel's work, create the ossature for the argument,

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and put flesh on its bones." United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990). Arroyo-Blas has waived any argument that we

should refuse to enforce his waiver of appeal.6

Appeal dismissed.

6 One last matter. In his brief, Arroyo-Blas tells us that

subsequent amendments to the Guidelines have reduced his base

offense level and provide for a lower sentencing range under either

Criminal History Category I or II, and that he should get the

benefits of these amendments at resentencing. Although neither

party mentions it (for reasons unknown), Arroyo-Blas has already

filed with the district court a motion to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2), and a magistrate judge has

recommended the motion be allowed. The district court's resolution

of this issue, however it may come out, is not before us in this

appeal and we make no comment on it.

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