Petition for Writ of Certiorari — Nicholas Pagliuca, Petitioner v. United States
Supreme Court briefJul 15, 2019
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No. 19–_____
_________________________________________________________________
In the
Supreme Court of the United States
____________________________________
Nicholas Pagliuca,
Petitioner,
v.
United States of America,
Respondent.
______________________________________________
On Petition for a Writ of Certiorari to
The United States Court of Appeals
For the Second Circuit
_________________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
_________________________________________________________________
Darrell Fields
Counsel of Record
Federal Defenders of New York, Inc.
Appeals Bureau
52 Duane Street, 10th Floor
New York, New York 10007
Tel.: (212) 417–8742
darrell_fields@fd.org
QUESTION PRESENTED
In United States v. Vonn, 535 U.S. 55 (2002), the Court held
that, when a judge at a guilty plea hearing fails to advise a
defendant
of
warnings
required
by
Federal
Rule
of
Criminal
Procedure 11, a defendant who did not object but later seeks to
withdraw the guilty plea must satisfy the plain-error standard of
Federal Rule of Criminal Procedure 52(b). Id. at 58-59. Later, in
“formulat[ing]
the
standard
for
determining
whether
[such]
a
defendant has shown . . . an effect on his substantial rights,” the
Court held: “[A] defendant who seeks reversal of his conviction
after
a
guilty
plea,
on
the
ground
that
the
district
court
committed plain error under Rule 11,” must show a reasonable
probability that, “but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 80, 83
(2004).
Both Dominguez Benitez and Vonn concerned defendants who
sought to set aside their guilty pleas. But the circuits are
divided on whether the Vonn/Dominguez Benitez standard applies to
errors under Rule 11(b)(1)(N), when a defendant raises an omission
in the Rule 11 plea colloquy as a basis for the non-enforcement of
an appeal waiver, not to attack the underlying conviction. See
Fed.R.Crim.P. 11(b)(1)(N) (requiring courts to inform defendants of
“the terms of any plea-agreement provision waiving the right to
appeal or to collaterally attack the sentence”).
i
The
Second
Circuit,
recognizing
this
split,
requires
a
defendant seeking to void an appeal waiver to show that “but for
the error” at the guilty plea hearing, the defendant would not have
pleaded guilty. Three other circuits, however -- the Third, Sixth,
and Ninth -- have expressly declined to extend Vonn/Dominguez
Benitez
to
violations
of
Fed.R.Crim.P.
11(b)(1)(N)
where
the
defendant does not seek to challenge the conviction.
The question presented is:
Whether the plain error standard of Vonn/Dominguez Benitez
applies in the context of violations of Fed.R.Crim.P. 11(b)(1)(N),
where the defendant raises an omission in the guilty plea inquiry
as a basis for the non-enforcement of an appeal waiver, not to
vacate the guilty plea -- an issue that divides the circuits.
ii
TABLE OF CONTENTS
QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . v
OPINIONS AND ORDERS BELOW.. . . . . . . . . . . . . . . . . . . 1
JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1
RULES INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . 1
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . 4
1.
The guilty plea hearing contains no mention
of the waiver of the right to appeal a fine.. . . . . 4
2.
The Presentence Report does not recommend a
fine... . . . . . . . . . . . . . . . . . . . . . . . 5
3.
The district court imposes a $15,000 fine.. . . . . . 5
4.
The Second Circuit notes that the judge’s
decision to impose the $15,000 fine rested,
in part, on an error, but enforces the
appeal waiver, relying on the Dominguez Benitez
prejudice standard... . . . . . . . . . . . . . . . . 6
REASONS FOR GRANTING THE WRIT.. . . . . . . . . . . . . . . . . 9
I.
The circuits are divided on whether the substantial
rights formulation of Dominguez Benitez applies
when the defendant claims an appeal waiver is
invalid, but does not challenge the guilty plea. .. . .
A.
At least two circuits apply the Dominguez
Benitez standard to Rule 11(b)(1)(N)
violations and require that the defendant
demonstrate “a reasonable probability that,
but for the [Rule 11] error, he would not
have entered the plea.”.. . . . . . . . . . . . . .
iii
10
10
B.
The Third, Sixth, and Ninth Circuits have
concluded that the Dominguez Benitez
standard is inappropriate for violations
of Rule 11(b)(1)(N), because the defendant
seeks -- not to set aside a guilty plea -but merely to void an appeal waiver.. . . . . . . .
12
This case presents an excellent vehicle to
resolve the question.. . . . . . . . . . . . . . . . . .
14
III. The Second Circuit’s decision was incorrect... . . . . .
16
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . .
19
II.
iv
TABLE OF AUTHORITIES
CASES
Tellado v. United States, 745 F.3d 48
(2d Cir. 2014).. . . . . . . . . . . . . . . . . . . . 3, 15
United States v. Arellano-Gallegos, 387 F.3d 794
(9th Cir. 2004). . . . . . . . . . . . . . . . . .
4, 8, 14
United States v. Burden, 860 F.3d 45
(2d Cir. 2017).. . . . . . . . . . . . . . . . . . . . 3, 15
United States v. Cook, 722 F.3d 477
(2d Cir. 2013).. . . . . . . . . . . . . . . . . . . . 3, 15
United States v. Corso, 549 F.3d 921
(3d Cir. 2008).. . . . . . . . . . . . . . . .
4, 8, 13, 14
United States v. Crain, 877 F.3d 637
(5th Cir. 2017). . . . . . . . . . . . . . . . . . . . .
United States v. Dominguez Benitez, 542 U.S.
74 (2004). . . . . . . . . . . . . . . . . . . . . .
11
passim
United States v. Lee, 888 F.3d 503
(D.C. Cir. 2018).. . . . . . . . . . . . . . . . . . . 9, 10
United States v. Lloyd, 901 F.3d 111
(2d Cir. 2018).. . . . . . . . . . . . . . . . . . . . 7, 10
United States v. Murdock, 398 F.3d 491
(6th Cir. 2005). . . . . . . . . . . . . . . .
4, 8, 12, 14
United States v. Shemirani, 802 F.3d 1
(D.C. Cir. 2015).. . . . . . . . . . . . . . . . . . . . . 9
United States v. Tanner, 721 F.3d 1231 (10th Cir. 2013). 8, 9, 11
United States v. Villodas-Rosario, 901 F.3d 10
(1st Cir. 2018). . . . . . . . . . . . . . . . . . . . .
17
United States v. Vonn, 535 U.S. 55
(2002).. . . . . . . . . . . . . . . . . . . . . . 1, 17, 18
STATUTES AND OTHER AUTHORITIES
18 U.S.C. § 2252(A)(5)(B).. . . . . . . . . . . . . . . . .
v
4, 6
18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. § 3742. . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1254(1).. . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 402(x)(1)(A)(i).. . . . . . . . . . . . . . . .
6, 7
Fed.R.Crim.P. 11(h).. . . . . . . . . . . . . . . . . . . . . . 1
Fed.R.Crim.P. 11(b)(1)(A)-(O).. . . . . . . . . . . . . . . . . 2
Fed.R.Crim.P. 11(b)(1)(N).. . . . . . . . . . . . . . . .
passim
Fed.R.Crim.P. 52. . . . . . . . . . . . . . . . . . . . . . . . 2
vi
OPINIONS AND ORDERS BELOW
The decision of the United States Court of Appeals for the
Second Circuit is unpublished, but is available at 767 Fed. App’x
93. It is reproduced at Pet. App. 1-6.
JURISDICTION
The court of appeals issued its judgment on April 16, 2019,
and had jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
The district court had jurisdiction under 18 U.S.C. § 3231. The
jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
RULES INVOLVED
1.
Rule
11(b)(1)(N)
of
the
Federal
Rules
of
Criminal
Procedure, provides:
(1) Advising and Questioning the Defendant.
Before the court accepts a plea of guilty or
nolo contendere, the defendant may be placed
under oath, and the court must address the
defendant personally in open court. During
this address, the court must inform the
defendant of, and determine that the defendant
understands, the following:
*
*
*
(N) the terms of any plea-agreement
provision waiving the right to appeal or to
collaterally attack the sentence[.]
2. Rule 11(h) of the Federal Rules of Criminal Procedure,
titled “Harmless Error,” provides:
Any variance from the procedures required by
this rule which does not affect substantial
rights shall be disregarded.
1
3. Rule 52 of the Federal Rules of Criminal Procedure, titled
“Harmless Error and Plain Error,” provides:
(a) HARMLESS ERROR. Any error, defect,
irregularity, or variance that does not affect
substantial rights must be disregarded.
(b) PLAIN ERROR. A plain error that affects
substantial rights may be considered even
though it was not brought to the court’s
attention.
INTRODUCTION
This case presents an important and recurring question of
federal criminal law on which the federal circuits are in conflict.
Federal Rule of Criminal Procedure 11(b)(1)(N) directs courts
to “inform the defendant of, and determine that the defendant
understands, ... the terms of any plea-agreement provision waiving
the right to appeal or to collaterally attack the sentence.”1
In this case, Petitioner pleaded guilty to a federal offense
under
a
plea
agreement
the
Government
drafted,
containing
a
provision waiving his right to appeal any fine of $300,000 or less.
1
Rule 11(b)(1) provides that “the court must address the
defendant personally in open court” to “inform the defendant of,
and determine that the defendant understands” fifteen enumerated
items -- see Fed.R.Crim.P 11(b)(1)(A)-(O) -- including “the terms
of any plea-agreement provision waiving the right to appeal or to
collaterally attack the sentence.” Fed.R.Crim.P. 11(b)(1)(N). The
commentary to Rule 11 explains that the Advisory Committee drafted
the rule largely to ensure that appellate waivers are knowing and
voluntary. See Fed.R.Crim.P. 11(b)(1)(N), advisory committee notes
to 1999 amendments (“Given the increased use of [waiver]
provisions, the Committee believed it was important to insure that
... the waiver was voluntarily and knowingly made by the
defendant.”).
2
At the guilty plea allocution, the judge said nothing about his
waiving the right to appeal a fine of $300,000 or less. Only a
provision waiving the right to appeal a prison sentence below 121
months was mentioned.
At sentencing, the court sentenced Petitioner to 37 months’
imprisonment. But it also imposed a $15,000 fine.
Petitioner appealed only the $15,000 fine. The Second Circuit
dismissed the appeal, however, because of the appeal waiver. It
reasoned that because Petitioner did not object to the alleged Rule
11(b)(1)(N) error, its review was for plain error. And -- relying
on its prior published precedent -- the Second Circuit held that
Petitioner’s “substantial rights” could not have been affected by
any such error because, under United States v. Dominguez Benitez,
542 U.S. 74, 80, 83 (2004), he had to “demonstrate that there is a
reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Pagliuca, 767 Fed. App’x 93, 95
(2d Cir. 2019) (quoting Dominguez Benitez, id. at 83) (citing
United States v. Burden, 860 F.3d 45, 52-53 (2d Cir. 2017); Tellado
v. United States, 745 F.3d 48, 54-55 (2d Cir. 2014); United States
v. Cook, 722 F.3d 477, 482-83 (2d Cir. 2013)). And Petitioner never
contended he would not have pleaded guilty but for the court’s
failure to advise him that he had waived the right to appeal any
fine up to $300,000.
3
Therefore, although the Second Circuit agreed with Petitioner
that the district court’s imposition of the fine was based, in
part, on an error -- an erroneous belief that he would
continue to
receive Social Security payments while he was incarcerated -- it
dismissed the appeal. Pagliuca, 767 Fed. App’x at 93, 94-96.
The Second Circuit recognized, however: “[T]here is a circuit
split on this question” about whether Dominguez Benitez applies to
Rule 11 errors “when defendants have attacked appellate waivers
that bar their sentencing appeals.” Pagliuca, 767 Fed. App’x at 96
n.2. It noted that three other circuits -- the Third, Sixth, and
Ninth -- have declined to extend Dominguez Benitez to appeal
waivers. In those circuits, to show that substantial rights were
affected by a violation Rule 11(b)(1)(N), the defendant does not
have to show that he or she would not have pleaded guilty if
advised of the appeal waiver. See United States v. Corso, 549 F.3d
921, 929 (3d Cir. 2008); United States v. Murdock, 398 F.3d 491,
496-97 (6th Cir. 2005); United States v. Arellano-Gallegos, 387
F.3d 794, 797 (9th Cir. 2004)).
STATEMENT OF THE CASE
1.
The guilty plea hearing contains no mention of the waiver
of the right to appeal a fine.
In November 2017, Petitioner pleaded guilty pursuant to a plea
agreement to one count of possession of child pornography, in
violation of 18 U.S.C. § 2252(A)(5)(B) and (b)(2). At the guilty
plea hearing, the judge told him that the plea agreement contained
4
a provision waiving his right to appeal any prison sentence below
121 months, telling him: “[U]nder the plea agreement, you are
giving up your right to appeal or otherwise attack or challenge
your conviction and sentence . . . as long as I sentence you within
or below the stipulated guidelines range of 97 to 121 months’
imprisonment.” Petitioner said he understood this.
But the plea agreement also contained a provision waiving
Petitioner’s right to appeal any fine that is “less than or equal
to
$300,000.”
The
waiver
provision
concerning
fines
was
not
discussed by the judge. The prosecutor also did not mention any
waiver of appeal concerning a fine.
2.
The Presentence Report does not recommend a fine.
The
Probation
Office’s
Presentence
Investigation
Report
recommended against a fine. Also, Petitioner was represented by
appointed counsel of the local federal public defender’s office,
whose indigent clients are not usually fined. Neither counsel nor
the Government mentioned a fine in their sentencing memoranda.
3.
The district court imposes a $15,000 fine.
At sentencing (in April 2018), the judge sentenced Petitioner
to 36 months’ imprisonment. The judge also imposed a fine of
$15,000. In deciding on the fine, the judge expressed the belief
that “he’ll be getting . . . his Social Security while in BOP
[custody][.]” The judge added: “I understand he’ll be paying [child
5
support] while in BOP, but he’ll be getting his pension and his
Social Security while in BOP as well.”
4.
The Second Circuit notes that the judge’s decision to
impose the $15,000 fine rested, in part, on an error, but
enforces the appeal waiver, relying on the Dominguez
Benitez prejudice standard.
Petitioner appealed only the $15,000 fine, not his conviction
or prison sentence.
The Second Circuit noted that “[t]he district court decided to
include a fine in Pagliuca’s sentence based in part on its belief
that he would receive Social Security benefits while incarcerated.”
United States v. Pagliuca, 767 Fed. App’x 93, 94 (2d Cir. 2019).
This belief was erroneous, however: “In fact, federal law prohibits
Social Security recipients from receiving payments for any month in
which
they
are
in
prison.”
Id.
(citing
42
U.S.C.
§
402(x)(1)(A)(i)).
But the Second Circuit stated: “For us to reach Pagliuca’s
challenge to the court’s decision, however, Pagliuca must overcome
the plea agreement he signed, which included an appeal waiver of
any fine below $300,000.” Id.
It reasoned that “[b]ecause Pagliuca did not object below to
the alleged Rule 11 violation, our review is for plain error.” Id.
at 95. Regarding the Rule 11 colloquy, the Circuit observed: “[T]he
court did not specifically point out that Pagliuca could only
appeal a fine of more than $300,000. Arguably, then, the court may
not have verif[ied] that [Pagliuca] understood the breadth of the
6
waiver.”
Id.
(citation
and
internal
quotation
marks
omitted)
(brackets in original).
But the Second Circuit stated, “[w]e need not decide whether
this plea colloquy violated Rule 11, however, because any such
error
did
not
affect
Pagliuca’s
substantial
rights.”
Id.
It
explained: “This Court has repeatedly stated that ‘[i]n the Rule 11
context,’ the substantial rights prong ‘require[s] that a defendant
show a reasonable probability that, but for the error, he would not
have entered the plea.’” Id. (quoting United States v. Lloyd, 901
F.3d
111,
119
(2d
Cir.
2018)(which
quotes
United
States
v.
Dominguez Benitez, 542 U.S. 74, 83 (2004)); see id. (noting that
“[t]his standard derives from . . . United States v. Dominguez
Benitez[.]”). Since there was no claim that Petitioner would not
have pleaded guilty but for the court’s failure to advise him he
was
waiving
the
right
to
challenge
the
fine,
he
could
not
demonstrate an effect on his substantial rights. So his “appellate
waiver remains valid and bars his appeal.” Id. at 97.
The Second Circuit recognized “[t]here is a circuit split on
this question.” And “several circuits have declined to extend the
substantial
rights
formulation
of
Dominguez
Benitez”
in
the
appellate waiver context when a defendant seeks only to vacate his
sentence, not to attack the underlying conviction. Id. at 95, 96
n.2. It noted that the Third, Sixth, and Ninth Circuits have
7
declined to extend the Dominguez Benitez standard to such cases.2
But at least one other circuit had, like the Second Circuit,
“applied Dominguez Benitez to Rule 11 errors when defendants have
attacked appellate waivers that bar their sentencing appeals.” Id.
at 96 n.2 (citing United States v. Tanner, 721 F.3d 1231, 1235-36
(10th Cir. 2013) (per curiam)).
The Second Circuit also stated that Petitioner’s knowledge of
the appeal waiver concerning fines could be found because, at the
plea hearing, the judge told him he faced a statutory maximum fine
of $250,000 and confirmed he had read the plea agreement and
discussed it with counsel. Id. at 96. However, the record shows no
indication the imposition of any fine was a serious consideration
of either party in this criminal case, as the defendant had
appointed counsel, the Probation Office did not recommend a fine,
and the prosecutor’s sentencing memorandum mentioned nothing about
one. Instead, applying the Dominguez Benitez standard, the Second
Circuit concluded that “the district court’s Rule 11 error did not
affect Pagliuca’s substantial rights” and dismissed the appeal. Id.
at 97.
2
See United States v. Corso, 549 F.3d 921, 929 (3d Cir. 2008);
United States v. Murdock, 398 F.3d 491, 496-97 (6th Cir. 2005);
United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir.
2004).
8
REASONS FOR GRANTING THE WRIT
The federal circuits are divided on the proper application of
the third prong of plain-error review (the “affected substantial
rights” prong), with respect to deficient guilty plea allocutions
on appeal waivers, where the defendant seeks to challenge his
sentence only, not his guilty plea.
The
Second
Circuit
and
the
Tenth
Circuit
hold
that
the
substantial rights formulation of Dominguez Benitez applies to such
cases: “the defendant must demonstrate that there is a reasonable
probability that, but for the error, he would not have entered the
plea.” United States v. Pagliuca, 767 Fed. App’x 93, 95-96 (2d Cir.
2019); see United States v. Tanner, 721 F.3d 1231, 1235-36 (10th
Cir. 2013).
But, as the Second Circuit recognized, the Third, Sixth, and
Ninth Circuits “have declined to extend the substantial rights
formulation of Dominguez Benitez to such cases.” Pagliuca, 767 Fed.
App’x at 95 (citing cases).
Other courts have also observed that the circuits have taken
“varying approaches” to the “[r]eview of a claim of invalidity of
an ostensible waiver of the right to appeal (but not the entire
plea)[.]” United States v. Shemirani, 802 F.3d 1, 3 (D.C. Cir.
2015) (citing cases); see United States v. Lee, 888 F.3d 503, 507
n.2 (D.C. Cir. 2018) (noting the varying approaches to invalid
appeals waivers and citing cases). “The Supreme Court has not
9
addressed the proper remedy for an invalid appeal waiver.” Lee, 888
F.3d at 507 n.2.
Therefore, because the application of the third prong of
plain-error review to these kinds of cases is an important and
recurring question in the federal courts of appeals that has
created a recognized split among the circuits, the Court should
grant certiorari in this case to resolve that division.
I.
The circuits are divided on whether the substantial rights
formulation of Dominguez Benitez applies when the defendant
claims an appeal waiver is invalid, but does not challenge the
guilty plea.
A.
At least two circuits apply the Dominguez Benitez
standard to Rule 11(b)(1)(N) violations and require that
the defendant demonstrate “a reasonable probability that,
but for the [Rule 11] error, he would not have entered
the plea.”
The
Second
Circuit
has
held
--
in
both
published
and
unpublished decisions -- that a Rule 11(b)(1)(N) error does not
affect a defendant’s substantial rights unless the defendant meets
the standard formulated in Dominguez Benitez: the defendant must
demonstrate that “but for the error, he would not have entered the
plea.” United States v. Pagliuca, 767 Fed. App’x 93, 95 (2d Cir.
2019))
(quoting
Dominguez
Benitez,
id.
at
83).
The
Circuit
explained: “This Court has repeatedly stated that ‘[i]n the Rule 11
context,’ the substantial rights prong ‘require[s] that a defendant
show a reasonable probability that, but for the error, he would not
have entered the plea.’” Id. (quoting United States v. Lloyd, 901
10
F.3d
111,
119
(2d
Cir.
2018)(which
quotes
United
States
v.
Dominguez Benitez, 542 U.S. 74, 83 (2004)).
In addition, the Tenth Circuit, as the Second Circuit noted in
Pagliuca, has also applied Dominguez Benitez to bar a sentencing
appeal. In United States v. Tanner, 721 F.3d 1231 (10th Cir. 2013)
(per curiam), the district court had failed to mention the appeal
waiver at the guilty plea. And after sentencing, the defendant
brought an appeal attacking his sentence. Id. at 1233. The Tenth
Circuit enforced the appeal waiver. It quoted Dominguez Benitez and
stated that the defendant “does not tell us why he would probably
change his [guilty] plea,” and proceed to trial, based on “the
judge's failure to specifically discuss the appeal waiver[.]”
Tanner, 721 F.3d at 1235-36.
Additionally, in United States v. Crain, 877 F.3d 637 (5th Cir.
2017) -- also cited in Pagliuca -- the Fifth Circuit, although not
expressly mentioning Rule 11(b)(1)(N), upheld the validity of a
“collaterally attack waiver,” barring a sentencing appeal based on
the Dominguez Benitez standard. Id. at 639, 643-45. The Fifth
Circuit
concluded
that
“Crain
has
not
shown
‘a
reasonable
probability that, but for the error, he would not have entered the
plea.’”
Id. at 645.
Thus, at least two circuits -- the Second and the Tenth, but
perhaps also the Fifth -- apply the Dominguez Benitez standard to
“Rule 11 errors when defendants have attacked appellate waivers
11
that bar sentencing appeals.” See Paglicua, 767 Fed. App’x at 96,
n.2. As discussed below, three other circuits have reached the
contrary conclusion.
B.
The Third, Sixth, and Ninth Circuits have concluded that
the Dominguez Benitez standard is inappropriate for
violations of Rule 11(b)(1)(N), because the defendant
seeks -- not to set aside a guilty plea -- but merely to
void an appeal waiver.
In cases involving alleged violations of Rule 11(b)(1)(N), the
Third, Sixth, and Ninth Circuits have held that the Dominguez
Benitez standard was inappropriate because the defendants in those
cases were seeking to pursue sentencing appeals, not set aside the
convictions.
In United States v. Murdock, 398 F.3d 491 (6th Cir. 2005), the
Sixth Circuit declined to adopt the Government’s view that, where
“the district court never told Murdock that he was waiving his
appellate rights” -- in order to meet the “affected substantial
rights” prong of plain error -- Murdock had to demonstrate that,
“but for the error, he would not have entered the plea.” Id. at
498-99. It explained:
Dominguez Benitez is inapplicable here because
Murdock is not seeking to reverse his
conviction, but merely to void the appellate
waiver provision in order to challenge his
sentence. We therefore will not require that
Murdoch show that, but for the district
court’s failure to discuss the appellate
waiver provision of the plea agreement, he
would not have pleaded guilty.
Id. at 496 (citations omitted).
12
The Sixth Circuit stated that “a defendant can prove that his
substantial rights are affected when he shows that the district
court failed to comply with the key safeguard in place to protect
those rights.” And “there was no functional substitute for that
safeguard.” Id. at 497 (footnote omitted).
Similarly, the Third Circuit addressed a claim that the
district court violated Rule 11(b)(1)(N): it “failed during its
colloquy with him at the change-of-plea hearing both to adequately
inform him of the terms of his appellate waiver and to ensure that
he understood those terms.” United States v. Corso, 549 F.3d 921,
928 (3d Cir. 2008). The Third Circuit declined to apply the
affects-substantial-rights standard of Dominguez Benitez since “the
defendant does not seek the reversal of his conviction (i.e., does
not seek to withdraw his guilty plea) but only challenges the
validity of his appellate waiver so that he may appeal from his
sentence[.]” Id. at 929 (emphasis added). It concluded, rather,
that the defendant
is obliged to show a reasonable probability
that the Rule 11 error precluded him from
understanding that he had a right to appeal
and that he had substantially agreed to give
up that right.
Corso, 549 F.3d at 929 (internal quotation marks and citation
omitted).3
3
Corso held that the plea-taking court’s “deviation from the
mandates of Rule 11(b)(1)(N) affected his substantial rights.” But
13
The Ninth Circuit has also declined to apply the Dominguez
Benitez standard to appellate waivers. United States v. ArellanoGallegos, 387 F.3d 794, 797 (9th Cir. 2004) (“Indeed, Arellano does
not appeal his conviction. Cf. [Dominguez Benitez]. He only appeals
from his sentence.”).
Thus, the Third, Sixth, and Ninth Circuits, have declined to
extend Dominguez Benitez to Rule 11 errors involving provisions of
plea agreements waiving the right to appeal or collaterally attack
the sentence. See Fed.R.Crim.P. 11(b)(1)(N). In these jurisdictions, a defendant claiming a violation of Rule 11(b)(1)(N) is not
required to demonstrate that she or he would have gone to trial
“but for” the court’s failure to discuss the appeal waiver. Rather,
a defendant's substantial rights are affected if “there was no
functional substitute” for the Rule 11(b)(1)(N) inquiry that would
demonstrate
the
defendant
understood
the
appeal
waiver.
See
Murdock, 398 F.3d at 497; Corso, 549 F.3d at 931; Arellano, 387
F.3d at 797.
II.
This case
question.
presents
an
excellent
vehicle
to
resolve
the
This case presents an excellent vehicle to resolve this
important question for two reasons.
it declined to exercise its discretion to set aside the appeal
waiver because of the fourth-prong of plain error: that the error
affect the fairness, integrity, or public reputation of the
judicial proceedings. 549 F.3d at 931.
14
First, the case squarely presents the question presented. The
Second Circuit acknowledged that its rule is that the Dominguez
Benitez standard applies to violations of Rule 11(b)(1)(N), even
though the defendant seeks only to void an appeal waiver. Its
Pagliuca decision also made clear that this rule rested on binding
Second
Circuit
precedent.
Pagliuca,
767
Fed.
App’x
at
95-96
(relying on United States v. Burden, 860 F.3d 45, 52-53 (2d Cir.
2017); Tellado v. United States, 745 F.3d 48, 54-55 (2d Cir. 2014);
United States v. Cook, 722 F.3d 477, 482-83 (2d Cir. 2013)). And it
acknowledged that the Second Circuit’s rule is contrary to the law
in three other circuits. Thus, the circuit split on the question
presented is starkly presented in this case.
Second, the plain-error standard the Second Circuit applied
was determinative of the outcome. The Circuit noted that the
district court’s imposition of the $15,000 fine was based, in part,
on its erroneous belief that Petitioner would continue receiving
Social Security payments during his incarceration. Pagliuca, 767
Fed. App’x at 94. But it declined to review the error. Instead, it
dismissed the appeal because of its application of the Dominguez
Benitez standard, holding that Petitioner’s substantial rights were
not affected by any violation of Rule 11(b)(1)(N) because he could
not show that “but for the error, he would not have entered the
plea.” See Pagliuca, 767 Fed. App’x at 95 (quoting Dominguez
Benitez, id. at 83) .
15
Although the Second Circuit also stated that Petitioner could
be found to have understood the appeal waiver because the judge
told him that he faced a statutory maximum fine of $250,000 and
confirmed he read the plea agreement and discussed it with counsel,
id. at 96, it was the Dominguez Benitez standard that determined
the outcome in this appeal. There is no indication that the
imposition of a fine was weighed as a serious consideration by
either party
in
this
criminal
case
where
the
Petitioner
had
appointed counsel. The plea agreement’s brief reference to a waiver
of the right to appeal a $300,000 fine was a single sentence in a
six-page, single-spaced document. The prison term is always the
core concern in a criminal case, whereas the imposition of a fine
on defendants represented by appointed counsel is a rarity, and not
an everyday consideration. It was instead the application of the
Dominguez Benitez standard that determined the appeal. Id. at 97.
This case, therefore, presents an excellent vehicle to resolve the
split among the federal circuits.
III. The Second Circuit’s decision was incorrect.
The
Circuit’s
Court
should
decision
to
also
grant
review
because
the
Second
apply
the
Dominguez
Benitez
prejudice-
standard in the appellate waiver context was incorrect.
As the First Circuit has observed: “The Supreme Court's
requirement that a defendant ‘must show a reasonable probability
that, but for the error, he would not have entered the plea,’ was
16
articulated in the context of ‘a defendant who seeks reversal of
his conviction after a guilty plea.’” United States v. VillodasRosario, 901 F.3d 10, 16-17 (1st Cir. 2018) (quoting Dominguez
Benitez, 542 U.S. at 83). The First Circuit also noted that the
Supreme Court has not “imported” the Dominguez Benitez prejudicestandard “into the realm of appellate waiver enforcement.” Id.
The First Circuit pointed out that, when a defendant “raises
an omission in the plea colloquy inquiry as a basis for the
non-enforcement of an appellate waiver, the conviction itself is
not at issue.” United States v. Villodas-Rosario, 901 F.3d 10, 17
(1st Cir. 2018). Although it did not decide the issue, the First
Circuit suggested that “the plain-error standard articulated in
Dominguez Benitez and Vonn,” should not “remain the standard used
to assess the enforceability of appellate waivers.” Id. It did not
decide on the proper standard because defendant’s knowledge of the
appeal waiver was evident because “at ... sentencing, his counsel
acknowledged that his plea agreement contained a provision that
waived his right to appeal his sentence if he was sentenced ‘within
the range of eight to 17’ years.” Villodas-Rosario, 901 F.3d at 12,
17-18.
As the First Circuit indicated, the holdings the Third, Sixth,
and Ninth Circuits are correct. This Court’s formulation of the
prejudice standard in Dominguez Benitez rested on the unique
importance of the finality of guilty pleas to the criminal justice
17
system. In Dominguez Benitez, the defendant “claim[ed] the right to
withdraw his plea of guilty” because of the court’s “failure to
give one of the warnings required by Federal Rule of Criminal
Procedure 11” concerning the right to counsel. 542 U.S. at 76; see
also Vonn, 535 U.S. at 60, 61 (On appeal, “Vonn sought to set
aside” the convictions, “for the first time making an issue of the
District Judge’s failure to advise him of his right to counsel at
trial, as required by the Rule.”). This Court reasoned that “one
can fairly ask a defendant seeking to withdraw his plea what he
might ever have thought he could gain by going to trial.” Dominguez
Benitez, 542 U.S. at 85. It emphasized “the particular importance
of the finality of guilty pleas, which usually rest, after all, on
a
defendant's
profession
of
guilt
in
open
court,
and
are
indispensable in the operation of the modern criminal justice
system.” Id., 542 U.S. at 82-83.
These concerns do not obtain, however, in the appeal waiver
context. In these cases, the defendant raises an omission in the
Rule 11 inquiry as a basis for not enforcing an appeal waiver. The
conviction itself is not at issue. Here, for example, Petitioner
did not seek the reversal of his conviction on appeal. He sought
only to appeal an aspect of his sentence: the $15,000 fine. It,
therefore, was wrong for the Second Circuit to require him to show
“a reasonable probability that, but for the error, he would not
have entered the plea.”
18
The Court, therefore, should grant the writ and reverse the
Second Circuit.
CONCLUSION
For the reasons stated, the petition for a writ of certiorari
should be granted.
Dated: New York, New York
July 15, 2019
Respectfully submitted,
Darrell Fields
Counsel of Record
Federal Defenders of New York, Inc.
Appeals Bureau
52 Duane Street, 10th Floor
New York, NY 10007
Tel.: (212) 417–8742
Darrell_Fields@fd.org
19
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.