Of the Eighth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 05-2425 

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS H. SOTO-CRUZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge, 

and Hansen, Senior Circuit Judge. *

Héctor L. Ramos-Vega, Research and Writing Specialist, with

whom Patricia A. Garrity, Assistant Federal Public Defender, and

Joseph C. Laws, Jr., Federal Public Defender, were on brief, for

appellant.

Marcos López, Assistant United States Attorney, with whom

Jacqueline D. Novas, Assistant United States Attorney, Nelson

Pérez-Sosa, Senior Appellate Assistant United States Attorney, and

H.S. García, United States Attorney, were on brief, for appellee.

June 7, 2006
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HANSEN, Senior Circuit Judge. Carlos H. Soto-Cruz appeals the

144-month sentence he received after he pleaded guilty to mail and

securities fraud. See 18 U.S.C. §§ 1341, 1348. Because Soto-Cruz

knowingly and voluntarily waived the right to appeal his sentence

in his plea agreement, we dismiss his appeal.

I.

Soto-Cruz, who worked his way out of a poor and troubled

childhood to earn a Ph.D. in philosophy, became a registered

stockbroker in 1989 for Paine Webber. He later worked for Dean

Witter Reynolds, Inc., which eventually merged with Morgan Stanley.

In 1991, Soto-Cruz began what turned into a twelve-year-long scheme

to defraud his clients out of at least $58 million. He advised at

least ten different individual and institutional clients to invest

in low-risk securities, including mortgage-backed securities issued

by the Government National Mortgage Association (GNMA). He then

funneled his clients' investments through fictitious corporate

accounts that he opened and controlled and into high-risk

investments, keeping the profits of the risky investments for

himself. Soto-Cruz was able to perpetuate the scheme for nearly

thirteen years, through the Dean Witter/Morgan Stanley merger, and

even while working under several different supervisors. SotoCruz's scheme resulted in actual losses to his clients, including

at least two banks, of more than $10 million. 

Soto-Cruz was indicted for thirty-six counts of mail, wire,
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and securities fraud in March 2004. On October 4, 2004, Soto-Cruz

entered into a written plea agreement, in which he agreed to plead

guilty to counts one through twenty (alleging separate counts of

mail fraud) and count thirty-six (alleging securities fraud). He

also agreed to forfeit $51 million worth of real estate and bank

accounts. The government agreed to dismiss the remaining counts.

The plea agreement contained a stipulation of the applicable U.S.

Sentencing Guidelines (USSG) factors, including a 20-level

enhancement for an actual loss exceeding $7 million, and a

stipulation to the resulting sentencing range of 121 to 151 months.

The government agreed to recommend a sentence at the lower end of

the agreed-upon applicable sentencing range.

Soto-Cruz entered into the plea agreement after the Supreme

Court decided Blakely v. Washington, 542 U.S. 296 (2004). The plea

agreement specifically provided "that the Court shall impose a

sentence in accordance with the applicable provision(s) of the

Sentencing Guidelines" (Appellant's App. at 52), and stated that

the "defendant is aware that the defendant's sentence is within the

sound discretion of the sentencing judge and will be imposed in

accordance with the Guidelines" (Id. at 53). Soto-Cruz agreed "to

waive all rights under Blakely," and "agree[d] to have his sentence

determined under the Sentencing Guidelines." (Id.) Finally, SotoCruz agreed that if the court "accept[ed] this agreement and

sentence[d] him according to its terms and conditions, [he]
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waive[d] and surrender[ed] his right to appeal the conviction and

sentence." (Id. at 62.)

The district court held a change of plea hearing on October 7,

2004, and accepted Soto-Cruz's guilty plea. Soto-Cruz was

sentenced in April 2005, after the Supreme Court decided Booker v.

United States, 543 U.S. 220 (2005). The district court applied the

Guidelines as advisory, as required by Booker. Despite the

government's recommendation for a 121-month sentence, the district

court sentenced Soto-Cruz to 144 months of imprisonment after

considering the now advisory Guidelines range (121 to 151 months)

and the other 18 U.S.C. § 3553(a) sentencing factors. Soto-Cruz

appeals his sentence. 

We agree with the government that Soto-Cruz validly waived his

right to appeal his sentence. "[P]lea-agreement waivers of the

right to appeal from imposed sentences are presumptively valid (if

knowing and voluntary)," subject to our inherent power to disregard

them in order to avoid a miscarriage of justice. United States v.

Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). Soto-Cruz "candidly

admit[s] that he entered into the waivers knowingly and

voluntarily." (Reply Br. at 11.) He argues, however, that the

district court's statement at the end of his sentencing hearing –

that he had the right to appeal his sentence if he thought it to be

illegal or unreasonable – negated the plea waiver. See Teeter, 257

F.3d at 26-27 (declining to enforce a plea agreement appeal
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waiver). 

In Teeter, we were concerned that contradictory statements by

a district court about a defendant's right to appeal despite an

appeal waiver may call into question the requirement that a waiver

must be knowing and voluntary. In Teeter, the district court

failed to ensure at the change of plea hearing that the defendant

understood the consequences of the appeal waiver, as required by

the then-recent amendments to Rule 11 governing plea colloquies.

The court compounded that error at the sentencing hearing by

stating without qualification that the defendant had "a right to

appeal any sentence I impose." Teeter, 257 F.3d at 27. We held

that the district court's failure to discuss the appeal waiver,

coupled with the inconsistent statements at the sentencing hearing,

called into question whether the defendant's surrender of her right

to appeal was sufficiently informed to bind her. Id. 

In this case, Soto-Cruz "concede[s] that the Magistrate Judge

carefully addressed him at the [October 2004] plea hearing to make

sure he understood the implications and consequences of the

waivers." (Reply Br. at 12.) Consequently, unlike Teeter, there

are no Rule 11 issues or concerns in this case. At the April 2005

sentencing hearing, the district court informed Soto-Cruz that he

could appeal his sentence if he thought the sentence violated the

law or was unreasonable. We held in Teeter that 

[w]hile broad assurances to a defendant who has waived

[his] appellate rights (e.g., "you have a right to appeal
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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. 

Teeter, 257 F.3d at 25. The context in which such a statement is

made is important to our determination of whether the statement is

sufficiently contradictory to an already agreed-upon, examined, and

accepted appeal waiver so as to render the waiver nugatory. See

United States v. De-La-Cruz Castro, 299 F.3d 5, 11-12 (1st Cir.

2002). 

The district court's statement in this case is not such a

"broad assurance." Rather, its statement about Soto-Cruz's appeal

rights was limited to the appeal of a sentence that Soto-Cruz

thought was in violation of the law or was unreasonable. Courts

have long recognized that appeal waivers do not prevent a defendant

from appealing a sentence that would result in a miscarriage of

justice, such as a sentence imposed in violation of the law. See

United States v. Johnson, 347 F.3d 412, 414 (2d Cir. 2003)

(refusing to enforce appeal waiver against defendant's claim that

his sentence was based on a constitutionally impermissible factor),

cert. denied, 540 U.S. 1210 (2004); United States v. Andis, 333

F.3d 886, 892 (8th Cir.) (en banc) (recognizing a narrow exception

to the enforceability of an appeal waiver for an allegedly illegal

sentence), cert. denied, 540 U.S. 997 (2003). Thus, the district

court's statement about the limited circumstances under which SotoCruz could appeal his sentence does not negate the enforceability
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of his appeal waiver. See De-La-Cruz Castro, 299 F.3d at 12

(holding that the district court's statement that the defendant

could appeal his sentence "under some circumstances" was correct

insofar as waivers do not prevent the correction of a miscarriage

of justice, and thus the statement did not negate the defendant's

appeal waiver).

Alternatively, Soto-Cruz argues that enforcement of the appeal

waiver would work a miscarriage of justice because the district

court denied his request to present, in a closed hearing,

mitigation evidence and evidence of his background. According to

Soto-Cruz, enforcement of agreed-upon mandatory Guidelines to his

post-Booker sentence would likewise work a miscarriage of justice.

"The miscarriage of justice reservation 'will be applied sparingly

and without undue generosity.'" De-La-Cruz Castro, 299 F.3d at 13

(quoting Teeter, 257 F.3d at 26). Some considerations that guide

our determination include the clarity, gravity, and character

(i.e., factual or legal) of the error; the impact of the error on

the defendant and on the government; and whether the defendant

consented to the result. Teeter, 257 F.3d at 26. 

We agree with the district court that the proposed mitigation

evidence would not have affected Soto-Cruz's sentence. Soto-Cruz

wanted to introduce evidence at the sentencing hearing that tended

to show that others were responsible for part of the losses in an

effort to reduce the agreed upon and stipulated to 20-level
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increase to his base offense level. He belatedly claims that he

was pressured by his supervisors to continue his scheme, and that

the failure of Morgan Stanley's internal controls to expose his

wrongdoing increased the amount of the losses. Such evidence would

have been directly contradictory to his signed plea agreement, in

which Soto-Cruz agreed that the actual losses from his conduct

exceeded $10 million and further specifically agreed to the 20-

level enhancement for a loss of between $7 million and $20 million.

Soto-Cruz also explicitly agreed to the resulting 121- to 151-month

sentencing range. A defendant waives his right to challenge

sentencing factors when he stipulates to the facts supporting the

sentencing factor. See United States v. Serrano-Beauvaix, 400 F.3d

50, 54 (1st Cir.), cert. denied, 126 S. Ct. 106 (2005). Indeed,

such a challenge would likely result in a breach of the agreement

by the defendant. See United States v. Rodríguez-González, 433

F.3d 165, 168 (1st Cir. 2005) ("[A] special problem exists where .

. . a defendant seems to disavow his stipulations without seeking

to set aside the plea agreement."). Denying Soto-Cruz the

opportunity to introduce evidence that would have contradicted the

stipulations he made in the plea agreement and solemnly affirmed in

open court at his plea proceeding did not work a miscarriage of

justice. 

We likewise reject Soto-Cruz's claim that the Supreme Court's

Booker decision, issued after Soto-Cruz entered into his plea
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agreement and before the district court sentenced him, somehow

renders enforcement of his appeal waiver a miscarriage of justice.

Soto-Cruz explicitly recognized that the constitutionality of the

Guidelines was in question at the time he entered into his plea

agreement, and he agreed to waive his right to appeal his sentence

as well as any claims under Blakely. Indeed, the Magistrate Judge

advised Soto-Cruz at his change of plea hearing that the Supreme

Court had heard argument in Booker the prior Monday, stating that

"[n]obody knows how the Supreme Court will rule on that, but I do

have to advise you that in theory you may have several rights . .

. but at this time you are waiving any rights to have the jury

determine your sentencing guideline calculations, if that were to

be the law as determined by the Supreme Court." (Appellee's Br. at

18 (quoting the change of plea hearing).) When asked if he

understood that he was waiving the possibility of the Supreme Court

so holding, Soto-Cruz responded, "Thoroughly and several times,

yes." (Id.) 

That the Supreme Court decided Booker differently than SotoCruz (or most of us) anticipated does not make his plea agreement

unknowing or involuntary. Indeed, other Courts of Appeals have

held defendants to appeal waivers that were entered into prior to

Blakely. See, e.g., United States v. Griffin, 418 F.3d 881, 882

(8th Cir. 2005) ("The fact that [the defendant] did not anticipate

the Blakely or Booker rulings does not place the issue outside the
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scope of his waiver." (internal marks omitted)); United States v.

Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005) (rejecting a claim

that an appeal waiver entered in 2000 was invalidated by Booker's

change in the sentencing laws because "a change in the law does not

make a plea involuntary and unknowing"). Unlike the defendants in

those cases, Soto-Cruz was sentenced pursuant to Booker under an

advisory Guidelines regime. Because he received the benefit of

Booker, the waiver of any Blakely claims cannot have resulted in a

miscarriage of justice. 

Nor can Soto-Cruz's claim that his sentence is unreasonable

satisfy the miscarriage of justice exception. Based on the

Guidelines range and the other § 3553(a) factors, the district

court imposed a sentence slightly above the middle of the advisory

Guidelines range. We recently explained that although a withinGuidelines range is not "per se reasonable," "the [G]uidelines

cannot be called just 'another factor' in the statutory list."

United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006)

(en banc). Soto-Cruz engaged in a very long-term fraudulent

scheme, using his relationship of trust as a stockbroker to defraud

his clients and friends, the betrayal of which, in his own words,

amounted to treason. While he is now very remorseful, he only

admitted to his conduct after being caught. That others within his

organization may have encouraged him or failed to stop him does not

change his own culpability. A much belated and half-hearted
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assertion that "the boss made me do it" does not negate the

extensive acts Soto-Cruz took to perpetuate his fraud. The

sentence imposed is not unreasonable and does not result in a

miscarriage of justice. The appeal waiver is enforced, and the

appeal is dismissed. 

Dismissed.