United States Court of Appeals

For the First Circuit

No. 00-2332

UNITED STATES OF AMERICA,

Appellee,

v.

PATRICIA A. TEETER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Boudin, Chief Judge,

 Selya and Lynch, Circuit Judges.

Peter E. Rodway and Rodway & Horodyski on brief for

appellant.

Jay P. McCloskey, United States Attorney, and Margaret D.

McGaughey, Assistant United States Attorney, on brief for

appellee.

July 23, 2001

1We have alluded to this issue in earlier cases, e.g.,

United States v. Ramirez, 252 F.3d 516, ___ (1st Cir. 2001) [No.

00-2274, slip op. at 3]; United States v. Hines, 196 F.3d 270,

272 (1st Cir. 1999); United States v. Springer, 28 F.3d 236, 237

(1st Cir. 1994), but we have yet to resolve it.

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SELYA, Circuit Judge. In this sentencing appeal, we

address for the first time two important questions. The

principal question concerns the validity of an advance waiver of

appellate rights contained in a plea agreement.1 Although we

conclude that such waivers are not forbidden, we refuse to give

effect to the waiver in this case because the record offers no

sufficient assurance that it was tendered knowingly and

voluntarily.

Despite winning this battle, the appellant ultimately

loses the war. Entertaining her appeal, we reach the second

main question — one that involves the effect to be given to a

stipulation, contained in a plea agreement, as to how a specific

sentencing issue should be resolved. On the facts of this case,

we hold that the district court did not commit reversible error

in accepting and acting upon a stipulated cross-reference within

the sentencing guidelines and, concomitantly, employing the

stipulated base offense level (BOL) produced by the use of that

cross-reference.

The appellant also raises other, more pedestrian

issues. As to those issues, we hold that the district court's
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refusal to depart downward from the guideline sentencing range

(GSR) did not constitute an appealable event; and that the

court's assessment of the appellant's role in the offense was

not clearly erroneous. Consequently, we affirm the substantial

prison sentence imposed below.

I. BACKGROUND

Defendant-appellant Patricia A. Teeter is a fortysomething-year-old woman whose story, insofar as relevant here,

reflects misplaced affection, terrible judgment, and the

gruesome depths of man's inhumanity to man. We recount the tale

at some length.

The appellant's troubles began when she forged a close

friendship with Steven Brown despite warnings from friends that

Brown had a propensity for violence. On March 22, 1999, a

matrimonial court found that Brown had physically abused his

estranged wife, Deborah, and the couple's minor children. The

court dealt Brown a series of heavy blows: it awarded custody

to Deborah, sanctioned her departure from New York, and ordered

Brown to refrain from any contact either with her or the

children. Brown told the appellant of the court's decree,

leaving no doubt about his perturbation.

On March 27, Brown asked the appellant to accompany him

on a "vacation" trip to Maine (during which he would retrieve
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his dog from Deborah). Although the appellant knew that Brown

had threatened violence against Deborah if he lost custody of

his offspring, she nonetheless agreed to the excursion. She

then watched Brown pack her car with a small arsenal, including

an SKS assault rifle, a .20 gauge shotgun, ammunition for the

weapons, and a pair of knives. Brown also stowed duct tape,

rope, and two hand-held radios aboard the vehicle.

The "vacationers" departed from New York early the next

morning. Once in New Hampshire, they temporarily abandoned the

appellant's car, rented another vehicle, and proceeded to

Lebanon, Maine. They eventually located the trailer occupied by

Deborah, her children, her brother, her father, and her new

swain. The new arrivals spent the afternoon and evening spying

on the group while Brown formulated a plan for Deborah's

abduction.

That night, Brown instructed the appellant to approach

the trailer and attempt to lure one of the male occupants

outside by claiming (falsely) that she was having car trouble.

Brown told the appellant that if she succeeded, he would then

incapacitate the good Samaritan. Following Brown's script, the

appellant inveigled Deborah's brother, Donald Wood, Jr., to come

outside. Brown hit him over the head with a piece of lead pipe

as he approached the rental car. The blow made an "eerie" sound
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that the appellant later said she would never forget. Brown

then dragged Wood into the woods — out of the appellant's sight

— and stabbed him twice. As matters turned out, this last bit

of mayhem was totally unnecessary, inasmuch as an autopsy later

revealed that the blow to the head was fatal.

At Brown's request, the appellant returned to the

trailer and, telling the same apocryphal tale, convinced

Deborah's consort, Chris Brouillard, to inspect the car. When

Brouillard approached, Brown forced him to the ground,

questioned him about his relationship with Deborah, struck him

with the pipe, dragged him into the copse, and stabbed him three

times.

Not content with two murders, Brown instructed the

appellant to fetch yet another victim from the trailer.

Although the appellant attempted to comply, the third try did

not go according to the script. Deborah — her suspicions

aroused by the previous activity — insisted that she drive her

own truck to the spot where the appellant's vehicle ostensibly

had been stranded. As Deborah neared the rental car, she spied

Brown lurking in the woods and drove away at high speed. After

a short interval, she returned to the trailer. When she pulled

into the driveway, Brown forced her into the rental car at

gunpoint and drove to New Hampshire (with the appellant as an
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added passenger). The rental car was returned only after the

appellant had wiped it down to obliterate her fingerprints.

The trio proceeded in the appellant's automobile to a

motel in East Greenbush, New York. Acting on Brown's

instructions, the appellant rented two adjoining rooms (one for

herself, one for her fellow travelers). To prevent Deborah from

calling for help, Brown removed the telephone from his room and

gave it to the appellant. During the day, the appellant washed

Brown's bloodstained clothes and ran errands for him. While

away from the motel, she called a friend who informed her that

Wood and Brouillard were dead, and that the police had mounted

a manhunt for Brown. The appellant made no attempt either to

flee or to contact the authorities. When the police raided the

motel the next morning, she vainly attempted to warn Brown by

giving a prearranged signal.

Following her arrest, the appellant faced a plethora

of federal and state charges. With respect to the federal

charges, she eventually entered into a plea agreement and

admitted her guilt as to one count of conspiracy, two counts

anent the use of a firearm in connection with a crime of

violence, two counts of aiding and abetting interstate domestic

violence, one count of aiding and abetting interstate stalking,

and one count of aiding and abetting the interstate violation of
2In line with this aspect of the agreement, the appellant

eventually pled guilty in a Maine state court to two counts of

felony murder and one count of kidnapping. She received a

twenty-year incarcerative sentence, to be served concurrently

with the sentence previously imposed by the federal district

court.

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a protection order. 18 U.S.C. §§ 2, 371, 924(b)-(c), 2261(a),

2261A, 2262(a)-(1). The appellant also agreed not to contest

certain of the state charges.2 In return, the United States

agreed to dismiss three other counts, including one for

kidnapping. The parties stipulated, for federal sentencing

purposes, to a BOL of 43 (a figure derived by cross-reference to

the first-degree murder guideline, USSG §2A1.1). Finally, the

appellant waived her right to appeal any sentence imposed by the

district court.

The court convened a change-of-plea hearing on January

19, 2000. At that session, the court queried the appellant as

to her overall understanding of the plea agreement, confirmed

that no unexpressed promises had been made to her, and

determined that she was changing her plea voluntarily. However,

the court neglected to mention the waiver of appellate rights

contained in the plea agreement. Instead, it told the

appellant, without qualification and without any demurrer from

the prosecutor, that she would have a right to appeal any

sentence imposed.
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At the disposition hearing (which stretched over

several days), the appellant asseverated that notwithstanding

the terms of her plea agreement, the district court should

renounce the suggested cross-reference and recalculate her BOL.

As a fallback, she argued that even if the cross-reference

endured, she was entitled to a downward departure because she

had never intended that Wood or Brouillard perish. Lastly, she

sought a role-in-the-offense adjustment on the ground that she

was a minimal (or, at most, minor) participant in the criminal

activity.

The sentencing court rejected each and all of these

importunings. The court cross-referenced to the first-degree

murder guideline to reach a BOL of 43, reduced the offense level

to 40 because the appellant had both accepted responsibility for

her actions and cooperated with the authorities, see USSG

§3E1.1, and used that figure in calculating her GSR (eschewing

any role-in-the-offense discount). Given the absence of any

significant criminal history, these computations yielded a GSR

of 292-365 months. The court sentenced the appellant at the

bottom of that range but added a mandatory consecutive sentence

of 60 months on the firearm counts. The court then advised the

appellant, without tailoring its comments to the contours of the

plea-agreement waiver of appeal, "that you have a right to
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appeal this sentence if you wish to do so." The prosecutor did

not attempt to correct this apparent misstatement.

This timely appeal ensued. In it, the appellant seeks

to revisit the issues that she unsuccessfully advanced at the

disposition hearing. Before discussing that proffer, however,

we first must confront the government's contention that this

appeal cannot go forward because Teeter should be held to the

terms of the waiver embedded in her plea agreement.

II. PRESENTENCE WAIVERS OF APPELLATE RIGHTS

We divide this portion of our opinion into three

segments. First, we discuss the validity in general of

presentence waivers of appellate rights. Next, we explore the

specific criteria and conditions that must be met in order for

such waivers to be effective, as well as the general power of

appellate courts to override such waivers in the interests of

justice. Finally, we assay the waiver at issue here.

A. Presentence Waivers of Appellate Rights: An Overview.

The basic argument against presentence waivers of

appellate rights is that such waivers are anticipatory: at the

time the defendant signs the plea agreement, she does not have

a clue as to the nature and magnitude of the sentencing errors

that may be visited upon her. Her waiver typically embraces all

determinations later made by the sentencing court — some of
3We note at the outset that the sort of waiver we are

discussing differs from the waiver disapproved in Worcester v.

Commissioner, 370 F.2d 713 (1st Cir. 1966). There, the

Commissioner sought to estop the taxpayer by reference to a

related criminal case. We rejected that effort, finding the

criminal proceeding to have been tainted because the court had

pressured the taxpayer-defendant into waiving his right to

appeal in exchange for a lighter sentence. Id. at 718

(explaining that "[t]he court was without right to bargain thus

with the defendant, or to put a price on an appeal"). We

expressed concern that, if we permitted this sort of plea

bargaining, a sentencing court might abuse its power in order to

avoid appellate review, and the defendant, in an unequal

bargaining position, would have little choice but to go along.

Id. When, as now, the agreement is between the prosecution and

the defense (and, thus, subject to the independent supervision

of the trial court), the Worcester rationale is inapposite.

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which may never have occurred either to her or to the

government, and some of which may be quite different than either

thought possible. In a certain sense, then — though not in the

usual criminal law sense — a waiver of the right to appeal

cannot be "knowing." In the appellant's view, this is a

fundamental defect — and one that distinguishes presentence

waivers of appellate rights from other waivers contained in a

plea agreement.

We are not unsympathetic to this argument. Withal,

three reasons counsel persuasively in favor of a rule that

accords general validity to presentence waivers of appellate

rights.3 First, waivers are not inherently suspect in criminal

cases any more than in civil cases. Criminal defendants

typically may waive their rights, as long as they do so
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voluntarily and with knowledge of the general nature and

consequences of the waiver. See Adams v. United States, 317

U.S. 269, 275 (1942) (discussing waiver of right to jury trial);

Johnson v. Zerbst, 304 U.S. 458, 464-67 (1938) (discussing

waiver of right to counsel). Indeed, guilty pleas are a staple

of our criminal justice system — and a guilty plea inevitably

entails a waiver of numerous rights. Although many of these

waivers pertain to future events — a waiver of the right to

trial by jury is a good example — their prospective nature has

never been thought to place them off limits or to render the

defendant's act "unknowing."

Moreover, the idea of permitting presentence waivers

of appellate rights seems relatively tame because the right to

appeal in a criminal case is not of constitutional magnitude.

See Jones v. Barnes, 463 U.S. 745, 751 (1983). Since the

Supreme Court repeatedly has ruled that a defendant may waive

constitutional rights as part of a plea agreement, e.g., Town of

Newton v. Rumery, 480 U.S. 386, 393 (1987); Brady v. United

States, 397 U.S. 742, 752-53 (1970), it follows logically that

a defendant ought to be able to waive rights that are purely

creatures of statute.

The Criminal Rules themselves lend support to this

conclusion. Effective December 1, 1999, the Supreme Court, with
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the approval of Congress, amended the Criminal Rules to provide

specifically that, during a change-of-plea hearing, the

presiding judge "must address the defendant personally in open

court and inform the defendant of, and determine that the

defendant understands . . . the terms of any provision in a plea

agreement waiving the right to appeal." Fed. R. Crim. P.

11(c)(6). While the advisory committee, in its explanatory

note, made clear that it took "no position on the underlying

validity of such waivers," it recognized that they had become an

accepted part of federal plea-agreement practice. See id.,

advisory committee notes. This widespread acceptance of the

practice is itself a clear indication that those who deal most

frequently with criminal cases have come to conclude that

presentence waivers of appellate rights are not forbidden.

Considerations of public policy furnish a second pillar

on which to rest a holding that breathes vitality into

presentence waivers of appellate rights. Since criminal

defendants are entitled to appeal convictions and sentences as

a matter of statutory right, see 18 U.S.C. § 3742; 28 U.S.C. §

1291, a defendant is unlikely to waive this right unless she

believes that some feature of a proffered plea agreement makes

it worth her while to do so. Allowing a criminal defendant to

agree to a waiver of appeal gives her an additional bargaining
4Less obvious, perhaps, is the protection against bait-andswitch tactics on the part of a defendant who makes concessions

to the government and then seeks to keep what she got and

withdraw what she gave. In the last analysis, it is up to the

courts to keep this balance steady and true.

5Finality is an especially important consideration in

society's attempt to administer a zetetick criminal justice

system. Its virtues have been extolled elsewhere, e.g., Daniels

v. United States, 121 S. Ct. 1578, 1582 (2001); Lackawanna

County Dist. Atty. v. Cross, 121 S. Ct. 1567, 1573-74 (2001),

and it would be pleonastic to rehearse them here.

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chip in negotiations with the prosecution; she may, for example,

be able to exchange this waiver for the government's assent to

the dismissal of other charges. This benefit is very real; in

some cases the government, without such a waiver, might not be

willing to plea-bargain at all.

The benefit to the prosecution — conservation of

resources — is obvious.4 In the same vein, presentence waivers

of appellate rights also husband judicial resources by

discouraging groundless sentencing appeals. With courtappointed counsel freely available and nothing to lose by

trying, a defendant, unfettered by a waiver agreement, is quite

likely to appeal on a wing and a prayer. Reducing the number of

baseless appeals promotes both efficiency and finality in the

adjudication of criminal cases.5

These policy considerations properly factor into our

assessment of presentence waivers of appellate rights. Cf. New
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York v. Hill, 528 U.S. 110, 117 (2000) ("We allow waiver of

numerous constitutional protections for criminal defendants that

also serve broader social interests."). They indicate that the

government, the defendant, and the judicial system all have

something to gain from presentence waivers of appellate rights.

This makes the device attractive: broadly speaking, plea

agreements are in the best interests of the parties and the

criminal justice system, United States v. Penta, 898 F.2d 815,

817 (1st Cir. 1990); Correale v. United States, 479 F.2d 944,

947 (1st Cir. 1973), and the more options that both sides have,

the more likely it is that they will reach an accord.

The third reason supporting a rule that accords

validity to presentence waivers of appellate rights is the sheer

weight of authority. On a close question, where no obviously

right or wrong answer exists, courts of appeals should strive to

avoid creating needless conflicts. In this instance,

presentence waivers of appellate rights have been accepted by

all nine of the circuit courts which have passed upon their

validity. See United States v. Hernandez, 242 F.3d 110, 113 (2d

Cir. 2001); United States v. Fleming, 239 F.3d 761, 763-64 (6th

Cir. 2001); United States v. Jemison, 237 F.3d 911, 917 (7th

Cir. 2001); United States v. Nguyen, 235 F.3d 1179, 1182 (9th

Cir. 2000); United States v. Cuevas-Andrade, 232 F.3d 440, 446
6Although the courts of appeals have been consentient, we

note that individual judges have demurred. E.g., United States

v. Melancon, 972 F.2d 566, 570-80 (5th Cir. 1992) (Parker, J.,

concurring); United States v. Perez, 46 F. Supp. 2d 59, 64-72

(D. Mass. 1999); United States v. Johnson, 992 F. Supp. 437,

438-40 (D.D.C. 1997); United States v. Raynor, 989 F. Supp. 43,

43-49 (D.D.C. 1997). Some commentators also have argued against

the validity of presentence waivers of appellate rights. E.g.,

Jack W. Campbell IV & Gregory A. Castanias, Sentencing-Appeal

Waivers: Recent Decisions Open the Door to Reinvigorated

Challenges, The Champion, May 2000, at 34.

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(5th Cir. 2000); United States v. Brown, 232 F.3d 399, 403 (4th

Cir. 2000); United States v. Black, 201 F.3d 1296, 1300 (10th

Cir. 2000); United States v. Howle, 166 F.3d 1166, 1168 (11th

Cir. 1999); United States v. Michelsen, 141 F.3d 867, 871 (8th

Cir. 1998). While these courts set varying boundaries, they all

agree that, under ordinary circumstances, a knowing, voluntary

waiver of the right to appeal from a sentence, contained in a

plea agreement, ought to be enforced.6 Absent some convincing

countervailing argument — and we are aware of none — we are

reluctant to brush aside this collective wisdom. Thus, this

unanimity strongly suggests that such waivers, if appropriately

drafted, asserted to, and explained, should be honored.

We will not paint the lily. Given the general

availability of waivers in criminal cases, the public policy

gains to be reaped by allowing plea-agreement waivers of

appellate rights, and the impressive body of precedent
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sanctioning such waivers, we hold that presentence waivers of

appellate rights are valid in theory.

B. Criteria and Conditions.

We do not lend our imprimatur to such waivers

indiscriminately. There are obvious dangers attendant to the

practice. Sentences ultimately are imposed by the district

courts, which must make sentencing determinations under

controlling law. When a district court errs in sentencing, that

error may be manifest on the record. Thus, in addition to

concerns about fairness to the defendant, an institutional

interest – public confidence in the judicial system – may be

adversely affected if such errors go uncorrected. To ameliorate

these risks, we deem it appropriate that such waivers meet

stringent criteria. Even then, we think that limits must be set

on the effect that can be given to them. It is to those

criteria and conditions that we now turn.

The baseline for any waiver of rights is that the

defendant enter into it knowingly and voluntarily. Rumery, 480

U.S. at 394. In the plea-bargain context, the text of the plea

agreement and the content of the change-of-plea colloquy are

critically important to a determination of knowledge and
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volition. See, e.g., United States v. Parrilla-Tirado, 22 F.3d

368, 373 (1st Cir. 1994) (examining both the text of the plea

agreement and the change-of-plea colloquy to determine whether

a guilty plea was entered knowingly and voluntarily). Like

other courts, e.g., Jemison, 237 F.3d at 916-18; Nguyen, 235

F.3d at 1182-83, we will consult those sources in determining

the validity of a particular presentence waiver of appellate

rights.

We look first to confirm that the written plea

agreement signed by the defendant contains a clear statement

elucidating the waiver and delineating its scope. E.g.,

Fleming, 239 F.3d at 762; Brown, 232 F.3d at 401. Mindful that

Rule 11(c)(6), quoted supra at 11, specifically recognizes the

importance of the change-of-plea hearing to any waiver of

appellate rights, we next will examine the transcript of that

hearing. The focus of this inquiry is to ascertain whether the

court's interrogation suffices to ensure that the defendant

freely and intelligently agreed to waive her right to appeal her

forthcoming sentence.

In respect to presentence waivers of appellate rights,

several courts had held, without reference to the neoteric

provisions of Rule 11(c)(6), that the district judge must

question the defendant specifically about her understanding of
7We refrain from prescribing any mandatory language for such

an inquiry because the circumstances will vary from case to

case, from defendant to defendant, and from plea agreement to

plea agreement. We caution only that the court's interrogation

should be specific enough to confirm the defendant's

understanding of the waiver and her acquiescence in the

relinquishment of rights that it betokens.

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the waiver provision and adequately inform her of its

ramifications. E.g., Jemison, 237 F.3d at 917-18; Brown, 232

F.3d at 401-02, 405-06. While some courts previously had held

waivers of appellate rights to be valid despite the absence of

specific questioning during the change-of-plea colloquy, e.g.,

Michelsen, 141 F.3d at 871-72; United States v. Wenger, 58 F.3d

280, 282 (7th Cir. 1995), these decisions antedate the adoption

of Rule 11(c)(6). That rule — which was in force when Teeter

changed her plea — alters the decisional calculus. In

explicating the rationale for adopting the rule, the advisory

committee made it pellucid that such an inquiry, properly

performed, offers considerable assurance of the defendant's

knowledge and volition. See Fed. R. Crim. P. 11(c)(6), advisory

committee notes. Consequently, we hold that the district court

must inquire specifically at the change-of-the-plea hearing into

any waiver of appellate rights.7 Neglecting this duty will

constitute error and may serve to invalidate the waiver,

depending upon what the record shows as to the defendants'

knowledge (that is, whether the defendant, notwithstanding the
8The rule provides in pertinent part:

After imposing sentence in any case, the

court must advise the defendant of any right

to appeal the sentence, and of the right of

a person who is unable to pay the cost of an

appeal to apply for leave to appeal in forma

pauperis.

Fed. R. Crim. P. 32(c)(5).

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absence of a particularized inquiry, understood the full

significance of the waiver) and the existence vel non of

prejudice. See United States v. Bushert, 997 F.2d 1343, 1351-52

(11th Cir. 1993); see also Fed. R. Crim. P. 11(h).

Of course, courts ought to strive for consistency.

While not necessarily a fatal error, a court can compromise an

otherwise adequate change-of-plea colloquy by sending

contradictory messages to the defendant. One potential source

of confusion looms when the trial court, acting pursuant to

Federal Rule of Criminal Procedure 32(c)(5),8 tells the defendant

at sentencing about her right to appeal. If a presentence

waiver of appellate rights is in place, the court should be

especially careful in its choice of words, taking pains to

explain to the defendant that her right to appeal is

circumscribed by her preexisting waiver.

One court has held that a blanket assurance about the

right of appeal, delivered when sentence is pronounced, cancels
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a preexisting waiver of appellate rights. United States v.

Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995) (holding that the

sentencing court's statement created "a reasonable expectation"

on the defendant's part that he could appeal his sentence,

notwithstanding the preexisting waiver). Other courts have

disagreed, e.g., United States v. Atterberry, 144 F.3d 1299,

1301 (10th Cir. 1998); Michelsen, 141 F.3d at 872, and so do we.

While broad assurances to a defendant who has waived her

appellate rights (e.g., "you have a right to appeal your

sentence") are to be avoided — they muddy the waters and tend to

instill false hope — they do not effect a per se nullification

of a plea-agreement waiver of appellate rights. Whether such

assurances may constitute reversible error in particular cases,

and if so when, are matters that may be left for another day.

We add a coda. We have endeavored to provide general

guidance to the district courts and the bar concerning pleaagreement waivers of appellate rights. We caution, however,

that because such waivers are made before any manifestation of

sentencing error emerges, appellate courts must remain free to

grant relief from them in egregious cases. When all is said and

done, such waivers are meant to bring finality to proceedings

conducted in the ordinary course, not to leave acquiescent

defendants totally exposed to future vagaries (however harsh,
9This category is infinitely variable, but, by way of

illustration, we would include within it situations in which

appellants claim that their sentences were based on

constitutionally impermissible factors (say, race or ethnicity),

Brown, 232 F.3d at 403; United States v. Schmidt, 47 F.3d 188,

190 (7th Cir. 1995), or that the plea proceedings were tainted

by ineffective assistance of counsel, Hernandez, 242 F.3d at

113-14; Jemison, 237 F.3d at 916 n.8.

10To cite a few examples, we do not think that a waiver

should be construed to bar an appeal if the trial court imposes

a sentence exceeding the maximum penalty permitted by law,

Black, 201 F.3d at 1301; United States v. Attar, 38 F.3d 727,

729-32 (4th Cir. 1994), or one that violates a material term of

the plea agreement, Michelsen, 141 F.3d at 872; United States v.

Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990).

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unfair, or unforeseeable). Our basic premise, therefore, is

that if denying a right of appeal would work a miscarriage of

justice, the appellate court, in its sound discretion, may

refuse to honor the waiver.9 As a subset of this premise, we

think that the same flexibility ought to pertain when the

district court plainly errs in sentencing.10

In sum, we conclude that plea-agreement waivers of the

right to appeal from imposed sentences are presumptively valid

(if knowing and voluntary), but are subject to a general

exception under which the court of appeals retains inherent

power to relieve the defendant of the waiver, albeit on terms

that are just to the government, where a miscarriage of justice

occurs. In charting this course, we recognize that the term

"miscarriage of justice" is more a concept than a constant.
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Nevertheless, some of the considerations come readily to mind:

the clarity of the error, its gravity, its character (e.g.,

whether it concerns a fact issue, a sentencing guideline, or a

statutory maximum), the impact of the error on the defendant,

the impact of correcting the error on the government, and the

extent to which the defendant acquiesced in the result. Other

considerations doubtless will suggest themselves in specific

cases.

We recognize, too, that this general reservation will,

at least at the outset, lessen what the government sees as the

prime benefit of its bargain: the automatic cutoff of debate

and the opportunity to get appeals dismissed on motion.

Realistically, however, the outlook is not entirely bleak.

While open-ended, the general reservation that we envision will

be applied sparingly and without undue generosity. Motions to

dismiss will still be entertained and, by appealing after

promising not to do so, defendants will risk giving the

government an option to disclaim a plea agreement, if it wishes

to do so.

We acknowledge that this approach represents a break

with precedent. Although several of our sister circuits have

made clear, in approving presentence waivers, that there will be

only narrowly circumscribed exceptions, e.g., Jemison, 237 F.3d
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at 911; Brown, 232 F.3d at 403; Michelsen, 141 F.3d at 872, we

do not feel comfortable adopting any rigid taxonomy without more

experience. Relief from waivers has traditionally occurred on

a fact-specific basis. We believe that the general reservation

which we adopt today is sufficiently broad to capture any truly

deserving case but demanding enough to prevent defendants who

have agreed to waive their right to appeal from successfully

pursuing garden-variety claims of error.

C. Waiver in the Instant Case.

Having constructed a framework for determining when

waivers of appellate rights will be enforced, we ponder the

waiver in this case. The following language appears in

paragraph five of the plea agreement:

The Defendant is aware that 18 U.S.C. §

3742(a) affords a defendant the right to

appeal the sentence imposed. Knowing that,

in exchange for the Government's concessions

made herein, the Defendant waives to the

full extent of the law any right to appeal .

. . the conviction and sentence, or the

manner in which it was determined . . . .

This explicit text is followed by a statement acknowledging the

appellant's voluntary acceptance of the entire plea agreement

and confirming that she has read and understood it. The

appellant and her attorney signed the document immediately

beneath this acknowledgment. These desiderata furnish prima

facie evidence of the appellant's knowledge and volition.
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What occurred next is somewhat more problematic.

During the change-of-plea colloquy, the district court

questioned the appellant concerning her overall understanding

of, and acquiescence in, the terms of the plea agreement, but

did not direct her attention to the waiver provision. As we

have said, the validity of a waiver of appellate rights depends

on whether the waiver was knowingly and voluntarily undertaken.

Here, the court — hampered, no doubt, by the newness of Rule

11(c)(6) and the consequent lack of any precedential guidance —

neither directed the appellant's attention to the waiver

provision nor discussed it with her. Compounding that problem,

the court, near the end of the Rule 11 colloquy, asked the

appellant: "[D]o you also understand that both you and the

government will have a right to appeal any sentence I impose?"

This unqualified query — to which the prosecutor (not the same

person who appears as counsel for the government in this court)

inexplicably failed to take exception — drew an affirmative

response from the appellant. The premise of this question

directly contradicted the tenor of the waiver provision.

Given the court's failure to make inquiry into the

waiver, its unfortunate contradiction of the waiver's terms, and
11Indeed, immediately following the imposition of sentence,

the court exacerbated the problem, stating: "I must advise you,

Ms. Teeter, that you have a right to appeal this sentence if you

wish to do so. Do you understand that?" Eliciting an

affirmative response, the court proceeded to explain, in

considerable detail, the requirements for filing an appeal. At

no time did the court mention the limitations on the right to

appeal ostensibly imposed by the plea agreement. Throughout,

the prosecutor stood mute.

-26-

the lack of any correction, then or thereafter,11 we cannot say

with the requisite assurance that the appellant's surrender of

her appellate rights was sufficiently informed. Accordingly, we

find that the district court transgressed Rule 11(c)(6). The

government has not argued that this error was other than

prejudicial. We think that the proper remedy, given the

circumstances, is to sever the waiver of appellate rights from

the remainder of the plea agreement, allowing the other

provisions to remain in force. See Bushert, 997 F.2d at 1353-

54. Thus, we permit Teeter's appeal to proceed.

III. THE MERITS

The appellant raises three substantive issues on

appeal. First, she argues that the lower court abused its

discretion in accepting the stipulated cross-reference to the

first-degree murder guideline. Second, she asks us to reverse

the court's decision not to depart downward. Finally, she

complains that the court committed clear error when evaluating
-27-

her role in the offenses of conviction. We address these claims

sequentially.

A. The Cross-Reference.

When sentences are imposed under the federal sentencing

guidelines, the process encompasses certain mechanical aspects.

First, the district court must determine the section of the

guidelines that applies to the offense(s) of conviction. The

court then must look to that guideline section to determine the

BOL. This is not as simple as it sounds because some guideline

provisions are not self-contained; they require (or, at least,

suggest) cross-referencing to other guideline sections to help

determine the BOL.

In this case, the sentencing court determined that the

appellant's conduct fell, in pertinent part, within the purview

of USSG §2A6.2 ("Stalking or Domestic Violence"). This

determination was fully consistent with the plea agreement, and

the appellant does not contest it. Moving forward, the court

noted that section 2A6.2(c) contains a cross-reference provision

which reads as follows: "If the offense involved conduct

covered by another offense guideline from Chapter Two, Part A

(Offenses Against the Person), apply that offense guideline, if

the resulting offense level is greater than that determined

above." The court found that the pertinent offenses of
-28-

conviction fell within the scope of this language and crossreferenced to the first-degree murder guideline (USSG §2A1.1).

Because that guideline yielded a higher BOL (43), the court

applied it.

The appellant concedes that, in the plea agreement, she

stipulated both to this very cross-reference and to the

resultant BOL (43). She nonetheless asseverates that the

sentencing court erred in embracing this stipulation. Here,

however, the appellant stipulated to the facts underlying the

cross-reference, and those facts render the sentencing court's

use of the cross-reference plausible. No more is exigible to

warrant rejection of the appellant's asseveration.

We have analogized plea agreements to contracts,

binding upon the prosecution and the defense alike. E.g.,

United States v. Ortiz-Santiago, 211 F.3d 146, 151 (1st Cir.

2000). We have been scrupulous in holding the government to the

due performance of its obligations thereunder, e.g., United

States v. Clark, 55 F.3d 9, 12-13 (1st Cir. 1995), and

defendants cannot expect to be treated less fastidiously.

Consequently, defendants ordinarily should be held to pleaagreement terms that they knowingly and voluntarily accept. See

United States v. Alegria, 192 F.3d 179, 185-86 (1st Cir. 1999).

But there are caveats. Stipulations about legal issues, for
12Conceivably, there may be a rare case in which relief from

such a stipulation would be justified to avoid a miscarriage of

justice or to correct a mutual mistake. But such cases will be

few and far between, and the case at hand is not one of them.

-29-

example, are problematic. There is language in a number of

cases indicating (correctly, we think) that such stipulations

normally are not binding on a court. E.g., Estate of Sanford v.

Commissioner, 308 U.S. 39, 51 (1939); Weston v. Wash. Metro.

Area Transit Auth., 78 F.3d 682, 685 (D.C. Cir. 1996); Gunn v.

United States, 283 F.2d 358, 364 (8th Cir. 1960). Even when

stipulations concern facts rather than law, courts traditionally

retain the power to relieve parties from them on terms that are

just. E.g., TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928

(1st Cir. 1995).

Of course, except where the parties have entered into

a binding plea agreement under the aegis of Federal Rule of

Criminal Procedure 11(e)(1)(C), the stipulations contained in

the agreement, even if factual in nature, do not tie the

district court's hands. See United States v. Saxena, 229 F.3d

1, 4-8 (1st Cir. 2000); Ortiz-Santiago, 211 F.3d at 149 n.2.

That the court has the power to deviate from such stipulations,

however, does not obligate the court to do so. Should the court

decide to accept and act upon factual stipulations for

sentencing purposes, the parties usually will be firmly bound.12
-30-

This general rule will apply when, for example, a defendant

stipulates to a matter of fact or to the applicability of a

sentencing guideline (the legal meaning of which is pellucid) to

the unique facts of her case. After all, the defendant knows

what she has done, and has little cause for complaint if the

district court takes her at her word.

It is much more difficult to justify binding effect for

a stipulation that purports to resolve a general issue of law

(or one that turns out to do so without acknowledgment). To

cite an extreme example, it is difficult to see why a district

court that misreads the effective date of a statute bearing on

a sentencing determination should automatically be insulated

from appellate review because the parties stipulated to the

(wrong) effective date. That leaves stipulations as to mixed

questions of fact and law. As to such stipulations,

generalizations are risky business. The answer, in a particular

case, may depend on the extent to which the mixed question is

fact-dominated, cf. In re Extradition of Howard, 996 F.2d 1320,

1328 (1st Cir. 1993), or the extent to which the known facts

(whether found by the court or stipulated by the parties) make

a given answer to the mixed question plausible.

This case involves a combination of these principles.

The appellant stipulated to the BOL – 43 – and to the propriety
-31-

of using the cross-reference to USSG §2A1.1 found in USSG §2A6.2

to reach that BOL. To that extent, her challenge to the

stipulation is based in law, and thus arguably subject to

plenary review. But there is more: in the course of the

proceedings below, the appellant pled guilty to counts five,

six, seven, and ten (among others). These counts charged her

with aiding and abetting interstate domestic violence,

interstate stalking, and interstate violation of a protection

order. 18 U.S.C. §§ 2, 2261(a)(1)-(2), 2261A, 2262(a)(1). She

admitted to certain facts through her plea agreement, the

change-of-plea colloquy, and at sentencing. Those factual

admissions are not now open to challenge — and they suffice to

justify the sentencing court's use of the stipulated crossreference. We explain briefly.

The applicable sentencing guideline in this case is

USSG §2A6.2 (Stalking or Domestic Violence). As said, this

section contains a cross-reference to the first-degree murder

guideline, USSG §2A1.1. This cross-reference arises by virtue

of USSG §1B1.3(a)(1)(B) (Relevant Conduct), which pertinently

provides that a defendant's BOL shall be determined "in the case

of jointly undertaken criminal activity [on the basis of] all

reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity, that
-32-

occurred during the commission of the offense of conviction."

In the district court, the appellant admitted to crossing state

lines to commit illegal acts against Deborah Brown, a

stipulation of fact unchallenged on appeal. Additionally, she

admitted to seeing and hearing Brown's vicious attack on Wood,

yet nonetheless luring the next victim, Brouillard, into a place

of maximum danger. Given these conceded facts, the murder of

the second victim, at the very least, was "a reasonably

foreseeable act" in furtherance of the offenses of conviction.

Consequently, the district court had a plausible factual basis

for cross-referencing to the first-degree murder guideline (as

agreed by the parties) and employing a BOL of 43.

On this point, we find United States v. Robinson, 14

F.3d 1200 (7th Cir. 1994), instructive. There, the defendant

entered into a plea agreement in which he admitted to

distributing specific quantities of drugs. The district court

sentenced him in line with the stipulation. The defendant

nonetheless appealed, claiming that the court erred by failing

to make an independent drug-quantity determination. Id. at

1206. The Seventh Circuit quickly shut down this appeal:

Robinson pled guilty, and was sentenced

based on what he admitted in the plea

agreement, at the guideline level agreed

upon in the plea agreement. . . . Robinson

got what he bargained for, he waived any

right to challenge the contents of the plea
-33-

agreement when he signed it, and he has no

basis to challenge it now.

Id. The same can be said for Teeter. Having admitted the

underlying facts that supported the sentencing court's resort to

the stipulated cross-reference, she is unable to challenge that

decision on appeal.

B. The Downward Departure.

The appellant's fallback position is that, even if the

district court appropriately cross-referenced USSG §2A1.1, it

nonetheless erred in failing to depart downward. This argument

stems from the fact that the heartland of the first-degree

murder guideline involves those who knowingly and intentionally

participate in an act of homicide. If, however, "the defendant

did not cause the [victim's] death intentionally or knowingly,"

the Sentencing Commission has raised the possibility that "a

downward departure may be warranted." USSG §2A1.1, comment.

(n.1). Such a departure was advisable here, the appellant

suggests, because she neither knowingly nor intentionally caused

the deaths of Wood and Brouillard.

We lack jurisdiction to consider this argument. For

the most part, departure decisions are discretionary, and a

defendant cannot appeal from the sentencing court's refusal to

grant a downward departure. Ortiz-Santiago, 211 F.3d at 148;

United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994).
-34-

Although there is a narrow window of opportunity for cases in

which the district court misapprehends its authority to depart,

Pierro, 32 F.3d at 619; United States v. Amparo, 961 F.2d 288,

292 (1st Cir. 1992), this case falls within the general rule,

not the long-odds exception to it.

Despite the appellant's efforts at creative

characterization, this assignment of error involves a

discretionary departure decision, pure and simple. Application

Note 1 specifically refers to the possibility of a "downward

departure" and leaves that possibility squarely in the hands of

the sentencing court. Hence, we lack jurisdiction to review the

court's refusal to invoke Application Note 1 unless there is

some reason to believe that the court misunderstood its options.

United States v. Shea, 211 F.3d 658, 674 (1st Cir. 2000).

There is absolutely no basis for any such belief here:

the appellant points to nothing that would indicate that the

court mistook its authority to depart, and the record makes

manifest that Judge Carter knew he had the power to depart but

deliberately chose not to do so. Indeed, the judge stated, not

once but twice, that he was rejecting the appellant's request

for a downward departure based on the facts of record. Under

these circumstances, we are foreclosed from second-guessing the

court's discretionary decision not to depart from the GSR.
-35-

C. The Role-in-the-Offense Adjustment.

The final arrow in the appellant's quiver also misses

the mark. She asserts that the district court incorrectly

failed to reduce her offense level given her unimportant role in

the crime spree. Absent a mistake of law — and we discern none

here — we review such factbound status determinations for clear

error. United States v. Garcia, 954 F.2d 12, 18 (1st Cir.

1992).

The appellant says that the lower court should have

classified her as a "minimal" or "minor" participant, and

decreased her offense level accordingly. A defendant who seeks

a downward role-in-the-offense adjustment must prove her

entitlement to it. See id. To qualify as a minimal participant

and obtain the concomitant four-level reduction, the appellant

would have to prove by a preponderance of the evidence that she

was, at most, a peripheral player in the criminal activity.

See, e.g., USSG §3B1.2, comment. (n.2) (giving, as an example of

a minimal participant, "someone who played no other role in a

very large drug smuggling operation than to offload part of a

single marihuana shipment"). To qualify as a minor participant

and obtain the concomitant two-level reduction, the appellant

would have to prove by a preponderance of the evidence that she

was "less culpable than most other participants." Id., comment.
-36-

(n.3). This means that she must be not only less culpable than

her cohorts in the particular criminal endeavor, but also less

culpable than the majority of those within the universe of

persons participating in similar crimes. See United States v.

Murphy, 193 F.3d 1, 9 (1st Cir. 1999); United States v. Ocasio,

914 F.2d 330, 333 (1st Cir. 1990).

Given the allocation of the burden of proof, a

defendant who seeks a downward role-in-the-offense adjustment

usually faces an uphill climb in the nisi prius court. The

deferential standard of review compounds the difficulty, so that

a defendant who fails to persuade at that level faces a much

steeper slope on appeal. "We have declared, with a regularity

bordering on the echolalic, that . . . battles over a

defendant's status . . . will almost always be won or lost in

the district court." United States v. Conley, 156 F.3d 78, 85

(1st Cir. 1998) (citations and internal quotation marks

omitted). This is such a case.

The court below determined that the appellant was

considerably more than a bit player in the unfolding tragedy.

This determination is amply rooted in the record. The appellant

facilitated Brown's travel plans; went with him to Maine; helped

him track down his prey; lured the first victim (Wood) from the

trailer to a locus where Brown could more easily get to him,
-37-

knowing that Brown had incapacitation in mind; put the second

victim (Brouillard) in harm's way after seeing Brown brutally

attack Wood; aided Brown in abducting and holding hostage his

estranged wife; maintained her allegiance even after receiving

irrefutable proof of the murders; and attempted to warn Brown

when the police arrived.

To be sure, the facts can be marshaled in such a way

as to put the appellant in a somewhat more sympathetic light.

The appellant's able counsel strives valiantly to transform the

case in this fashion: he claims that the appellant agreed only

to spend a romantic weekend holiday with her boyfriend in Maine,

and that what happened thereafter was largely beyond her

control. This spin does not carry the day, however, because the

sentencing court was fully entitled to draw a different, more

sinister, set of inferences from the largely undisputed facts.

See United States v. Santiago-Gonzalez, 66 F.3d 3, 7 (1st Cir.

1995); Garcia, 954 F.2d at 18. Accordingly, we uphold the

district court's eschewal of a downward role-in-the-offense

adjustment. See United States v. Ruiz, 905 F.2d 499, 508 (1st

Cir. 1990) (explaining that "where there is more than one

plausible view of the circumstances, the sentencing court's

choice among supportable alternatives cannot be clearly

erroneous").
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IV. CONCLUSION

We need go no further. Although we afford the

appellant a full right of appeal notwithstanding the waiver of

appellate rights contained in her plea agreement, we reject each

and all of her claims of error. Her conviction and sentence

must, therefore, be

Affirmed.