Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 09-1964

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL LARA-JOGLAR, a/k/a Picu, a/k/a Rafito, a/k/a Pito,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard and Thompson, Circuit Judges.

Geoffrey M. Raux, Michael J. Tuteur, Matthew A. Ambros and

Foley & Lardner LLP, on brief for appellant.

Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.

Meconiates, Assistant U.S. Attorney, and Rosa Emilia RodríguezVélez, United States Attorney, on brief for appellee.

October 5, 2010
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Per Curiam. This is Rafael Lara-Joglar's direct appeal

from his conviction and sentence for his participation in a multidefendant drug-trafficking conspiracy. The defendant's principal

arguments on appeal are that his guilty plea was involuntary and

unknowing and that his plea agreement as a whole was

unconscionable. We will discuss those arguments before addressing

the enforceability of the appeal waiver in his plea agreement

because, if the guilty plea or the plea agreement as a whole is

invalid, then the appeal waiver provision of the agreement is

obviously invalid as well. 

The parties disagree as to the applicable standard of

review of these claims. The government argues that, because the

defendant did not seek to withdraw his guilty plea before

sentencing, this court's review of the validity of his plea is only

for plain error. The defendant's opening brief is silent on the

standard of review (in violation of Rule 28(a)(9)(B) of the Federal

Rules of Appellate Procedure), but his reply brief argues that,

even though the claims were not preserved, a de novo standard of

review applies. Because we conclude that the guilty plea and plea

agreement were valid under either standard, we need not resolve

that disagreement.

The major common premise of this group of arguments is

that although the defendant's own participation in the underlying

offense was allegedly limited, he was charged along with 58 co-
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defendants with participating in a drug-trafficking conspiracy

involving large amounts of drugs, guns (including machine guns),

and several murders and that the government had massive physical,

audio-visual, and documentary evidence that might unfairly be

attributed to him, especially given the potentially self-serving

testimony of at least five cooperating witnesses, resulting in a

much higher sentence than he received by pleading guilty. A

further allegedly coercive circumstance was the court's summary

denial of his newly appointed counsel's motion to continue the

trial after his original counsel was forced to withdraw, due to a

conflict of interest, less than three weeks before trial. He

argues that those circumstances coerced him into pleading guilty

rather than going to trial and facing the likelihood of "guilt by

association"; that, in light of those circumstances, the court

should have taken additional steps to ensure that his plea was

voluntary and knowing; and that these same circumstances forced him

to accept the government's proposed plea agreement, which he

characterizes as "unconscionable."

"It cannot be gainsaid that a defendant's decision to

enter a guilty plea is sometimes influenced by his assessment of

the prosecution's case." Ferrara v. United States, 456 F.3d 278,

291 (1st Cir. 2006). But that common motive for pleading guilty

"cannot form the basis for a finding of involuntariness," unless

"the defendant's misapprehension of the strength of the
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government's case results from some particularly pernicious form of

impermissible conduct." Id. The allegedly improper conduct that

the defendant attributes to the government here is primarily that

it brought a multi-defendant conspiracy prosecution. That alone,

of course, is not impermissible. While various courts, including

this one, have recognized the risks of such prosecutions--namely,

that the jury will find individual, presumptively innocent

defendants guilty by virtue of their association with their more

obviously culpable co-defendants--they have done so primarily in

the context of requiring that certain safeguards be imposed to

prevent such risks from being realized. See, e.g., Richardson v.

Marsh, 481 U.S. 200, 211 (1987) (holding that where a nontestifying

co-defendant's out-of-court confession does not facially

incriminate another defendant, it can be admitted in a joint trial

only with a limiting instruction and redacted to eliminate any

reference to the other defendant's existence); Bruton v. United

States, 391 U.S. 123, 135-36 (1968) (holding that where a

nontestifying co-defendant's out-of-court confession does facially

incriminate another defendant, it cannot be admitted in a joint

trial even with a limiting instruction); United States v. OfrayCampos, 534 F.3d 1, 24-31 (1st Cir.) (vacating defendants'

convictions where the court told the jury, without any limiting

instruction, that 37 co-defendants were in prison for participating

in the alleged conspiracy), cert. denied, 129 S. Ct. 588 (2008).
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Although the defendant claims that he should have been

made aware of those safeguards at his change-of-plea hearing, no

such detailed description was required. Rule 11 requires only that

the court inform the defendant of "his right at trial to confront

and cross-examine witnesses," Fed. R. Crim. P. 11(b)(1)(E), which

has been found to be satisfied where the court merely "touched on"

that right and the defendant expressed no confusion. United States

v. Moriarty, 429 F.3d 1012, 1020 n.5 (11th Cir. 2005). The

Constitution requires even less. Ward, 518 F.3d at 83 & n.13.

Here, the court not only mentioned those rights but explained them,

at some length, in layman's language. That explanation was more

than sufficient.

The defendant further objects to the court's use of the

words "anyone" or "someone" as being too narrow to include the

possibility that "it was the coercive circumstances--brought on by

the Government's tactics--that compelled [him] to accept the

oppressive terms in the plea agreement." However, even in a

potentially more coercive, package-plea situation, which was not

present here, the general inquiry as to whether "anyone" forced the

defendant to plead guilty has been held sufficient. United States

v. Mescual-Cruz, 387 F.3d 1, 9-10 (1st Cir. 2004); cf. United

States v. Martinez-Molina, 64 F.3d 719, 734 (1st Cir. 1995)

(finding inquiry as to whether the "prosecutor" forced a defendant
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to plead guilty insufficiently broad to cover the possibility that

he was coerced to do so by his co-defendants).

The final allegedly "coercive circumstance" that the

defendant points to is that, less than three weeks before the

scheduled trial date, the court summarily denied newly appointed

defense counsel's motion for a continuance of the trial.

Ordinarily, denial of a continuance of trial is within the broad

range of the district court's discretion, United States v. MangualSantiago, 562 F.3d 411, 429-30 (1st Cir. 2009); but an unexplained

denial may be an abuse of that discretion, id. at 430-31.

Here, although the court initially gave no reasons for

denying the motion, it later explained that it had appointed this

particular attorney because he had experience in criminal

litigation and knowledge of criminal law in general and of this

case in particular (through his earlier, brief representation of

another defendant) and would therefore be able to "go through the

evidence in the case immediately, and make an accurate assessment

of where [the defendant's] case stood in terms of the complete

scenario of the case" and could do so "rapidly." Denying a

continuance in those circumstances was within the court's

discretion.

As to the unconscionability of the plea agreement, the

defendant alleges that the government refused to negotiate the

terms of the plea agreement with him and that the terms it offered
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were unreasonably favorable to the government. Those allegations

are unsupported by the record, which indicates that the parties

engaged in extensive, good-faith plea negotiations and that the

terms of the final agreement, far from being "unconscionable," were

highly favorable to the defendant in that, absent the agreement, he

was exposed to a mandatory minimum of ten rather than five years

and a maximum of a life sentence rather than the 156-month sentence

jointly recommended in the agreement, the best deal offered to any

similarly situated defendant. The plea agreement and the guilty

plea in general were therefore not so coercive as to be

involuntary.

The threshold issue as to the remainder of the

defendant's appellate arguments is the enforceability of his appeal

waiver; if it is enforceable, then we need not--and should not--

reach the other issues that the defendant raises on appeal. United

States v. Borrero-Acevedo, 533 F.3d 11, 18 (1st Cir.) ("[A]n

inquiry into the merits is exactly what a waiver of appeal blocks."

(internal quotation marks omitted)), cert. denied, 129 S. Ct. 587

(2008). We will therefore address that issue next.

Presentence waivers of appeal are enforceable if the

waiver was "knowing" and "voluntary" and if enforcing it would not

result in a "miscarriage of justice." United States v. Teeter,
Because the government does not invoke the plain-error 1

standard that would otherwise apply to an unpreserved challenge to

the enforceability of an appeal waiver, Borrero-Acevedo, 533 F.3d

at 13, we apply the Teeter standards without the plain-error

overlay. See United States v. Edelen, 539 F.3d 83, 85 n.1 (1st

Cir.), cert. denied, 129 S. Ct. 427 (2008); United States v.

Chandler, 534 F.3d 45, 49 n.3 (1st Cir. 2008).

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257 F.3d 14, 24-25 (1st Cir. 2001). In determining whether the 1

waiver was knowing and voluntary, we evaluate whether the written

plea agreement "contains a clear statement elucidating the waiver

and delineating its scope" and whether the district court

"inquire[d] specifically at the change-of-plea hearing into any

waiver of appellate rights." Id. at 24; see also Fed. R. Crim. P.

11(b)(1)(N) (requiring such an inquiry). 

Here, the defendant does not challenge the clarity of the

written waiver, which provided that if the court "accepts this Plea

Agreement and sentences [the defendant] according to its terms,

conditions and recommendations, [he] waives and surrenders his

right to appeal the judgment and sentence in this case." Nor could

he successfully mount such a challenge since we have repeatedly

upheld the clarity of nearly identically worded waivers. See,

e.g., González-Colón, 582 F.3d at 127; United States v. De-La-Cruz

Castro, 299 F.3d 5, 10 (1st Cir. 2002).

Rather, in arguing that the appeal waiver itself was

unknowing and involuntary, the defendant focuses on the alleged

insufficiency of the court's explanation of the waiver at the
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change-of-plea hearing and at sentencing. The record of those

hearings, however, reveals no such deficiencies. 

At the change-of-plea hearing, the court specifically

brought the appeal waiver to the attention of the defendant and his

co-defendant, whose agreement apparently contained an identically

worded waiver. The court correctly explained the waiver, as

applied to each defendant's circumstances, as follows: 

[I]f I sentence you Mr. Lara to 156

months and Mr. Aponte if I sentence

you to 108 months concurrent, then

you will accept that as the final

sentence. You will not be asking a

higher Court to review what I have

done or how I made the analysis of

the sentencing guidelines or what

w[ere] the factors that l[ed] to any

sentence, to that sentence that I

imposed. Which means this sentence

will be firm and final.

Id. 

The defendant argues that, by using the word

"concurrent," the court created confusion as to whether Lara's

recommended 60-month sentence on Count 7 would be concurrent with

or consecutive to his 96-month sentence on Count 1. However, since

the court specifically referred to a sentence of 156 months for

Lara, it was clear that the number 156 referred to the total

recommended sentence on both counts (96 plus 60), and that the word

"concurrent" applied only to co-defendant Aponte's recommended

sentence, which was previously described as concurrent with his

sentences on related federal and state offenses. Not only did Lara
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express no confusion with that explanation, any inference that he

was confused is precluded by the court's earlier repeated

explanations that the mandatory 60-month sentence on Count 7 would

be consecutive to the parties' recommended 96-month sentence on

Count 1 and by the defendant's own accurate explanation of the

meaning of "consecutive" in his own words.

The defendant goes on to argue that "[t]he waters were

further muddied" by the court's advice, at sentencing, that "were

[he] to appeal the judgment in this case [he had] ten days, [he

could] ask attorney Vega to file, [he could] do it pro se or [he

could] ask the Clerk of Court to file it on [his] behalf" and that

"[w]ere [he] to pursue an appeal, Mr. Vega could do it or any other

attorney from the Court[, and that,] [i]n addition[,] [he could]

ask for authorization to proceed in forma pauperis" (emphases

added). That conditional advice, however, was offered only "out of

an abundance of caution" and was immediately prefaced by the

following statement (omitted from the defendant's brief): "The

sentence [the court] imposed [w]as pursuant to the plea agreement

stipulated between the parties so that I take it that the waiver of

appeal is triggered and that waiver is totally enforceable."

Neither the defendant nor his attorney objected to or sought

clarification of that statement. In that context, nothing the

court said at sentencing "muddied" its previous clear explanation

of the appeal waiver at the change-of-plea hearing. Rather, in
The phrase "in any way" was misleadingly omitted from the 2

defendant's brief. That omission coupled with the one noted above

leads us to remind counsel of their responsibility of candor to the

court. See Model Rules of Prof'l Conduct R. 3.3; Amstar Corp. v.

Envirotech Corp., 730 F.2d 1476, 1486 (Fed. Cir. 1984). 

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fulfilling its obligation under Rule 35(j)(1) to advise the

defendant of "any right to appeal," the court did precisely what we

prescribed in these circumstances, namely, to be "especially

careful in its choice of words, taking pains to explain to the

defendant that h[is] right to appeal [wa]s circumscribed by h[is]

preexisting waiver." Teeter, 257 F.3d at 25. The court's

comments, taken as a whole, thus fell far short of the "blanket

assurance about the right to appeal" that we have cautioned

against. Id. Therefore, the defendant's arguments that his waiver

of appeal was unknowing are unavailing. 

The defendant further faults the district court for

failing to inquire separately as to the voluntariness of the appeal

waiver (in addition to asking whether "anyone forced [him] or

compelled [him] in any way to accept the terms and conditions" of 2

the plea agreement; whether "someone forced [him] in any way or

manner . . . to accept [the government's] version of facts"; and,

more generally, whether "someone in any way or fashion forced [him]

to make the decision of pleading guilty"). That claim for more

specificity fails. 

"Although specific attention to the issue of

voluntariness in any plea proceeding is highly desirable, there is
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no specific script that must be followed." Ward, 518 F.3d at 86.

There is no requirement in Rule 11 or otherwise that the court

specifically ask whether a defendant's appeal waiver was voluntary;

Rule 11(b)(1)(N) requires only that the court determine whether a

defendant "understands" the terms of any such waiver, which was

done here. Although Rule 11 does require the court to "address the

defendant personally in open court and determine that the plea is

voluntary," Fed. R. Crim. P. 11(b)(2) (emphasis added), even that

general inquiry is not constitutionally mandated. Ward, 518 F.3d

at 82. Moreover, although not required to do so, the court here

did ask the defendant whether "anyone forced or compelled [him] in

any way to accept the terms and conditions of this contract that

[he had] made with the government," and that question immediately

followed the discussion of the appeal waiver.

Because the first two Teeter factors are thus satisfied,

the only remaining potential barrier to enforcing the appeal waiver

is if doing so would "work a miscarriage of justice." Teeter, 257

F.3d at 25. But the defendant's opening brief is virtually silent

on that point; the only allusions to that standard are in a

parenthetical following a case citation and in a footnote. His

reply brief cites the exception but develops no argument as to how

it applies here. By not directly making a miscarriage-of-justice

argument in his opening brief and belatedly mentioning but not

developing it in his reply brief, the defendant arguably waived the
Those arguments are that the court erred in imposing a 3

leadership enhancement and that 18 U.S.C. § 924(c) violates the

Second Amendment.

The panel has unanimously concluded that oral argument is 4

unnecessary. See Fed. R. App. P. 34(a)(2); 1st Cir. R. 34.0(b).

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application of that exception. United States v. Hall, 557 F.3d 15,

20 n.3 (1st Cir.), cert. denied, 129 S. Ct. 2849 (2009); United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Nevertheless, applying the relevant factors, including

"'the clarity of the alleged error[s], [their] character and

gravity, [their] impact on the defendant, any possible prejudice to

the government, and the extent to which the defendant acquiesced in

the result,'" United States v. González-Colón, 582 F.3d 124, 129

(1st Cir. 2009) (quoting United States v. Gil-Quezada, 445 F.3d 33,

37 (1st Cir. 2006)), we have considered whether foreclosure of

either of the remaining arguments raised on appeal would be so 3

unjust as to satisfy the appropriately demanding miscarriage-ofjustice standard, and we have concluded that no such injustice

would result.

In sum, the defendant's guilty plea and plea agreement

were valid, his appeal waiver was knowing and voluntary, and

enforcing the waiver to preclude his remaining arguments on appeal

would not work a miscarriage of justice. Accordingly, the district

court's judgment is affirmed. See 1st Cir. R. 27.0(c). 4