APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge,
Hon. Bruce J. McGiverin, U.S. Magistrate Judge
Franco
L. Pérez-Redondo, Research & Writing Attorney,
with whom Eric A. Vos, Federal Public Defender, and Vivianne
M. Marrero-Torres, Assistant Federal Public Defender,
Supervisor, Appeals Section, were on brief, for petitioner.
Antonio L. Pérez-Alonso, Assistant United States
Attorney, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for
respondent.
Before
Torruella, Selya, and Lynch, Circuit Judges.
SELYA,
CIRCUIT JUDGE.
In
Roe v. Flores-Ortega, 528 U.S. 470 (2000), the
Supreme Court held that, as a matter of constitutional law, a
defense attorney has a duty to consult with a client about an
appeal either when a particular defendant reasonably
demonstrated to the attorney that he was interested in
appealing or when the circumstances are such that a rational
defendant would want to appeal. See id. at 480. The
Court went on to hold that when an attorney violates this
duty, a presumption of prejudice arises. See id. at
483. The appeal at hand requires us, for the first time, to
apply the Flores-Ortega presumption of prejudice in
circumstances in which the defendant has previously executed
a plea agreement containing a waiver-of-appeal provision.
Mindful of the teachings of both Flores-Ortega and
Garza v. Idaho, 139 S.Ct. 738 (2019), we reverse the
district court's dismissal of petitioner-appellant
Toribio Rojas-Medina's petition for post-conviction
relief and direct the district court, on remand, to afford
him an appropriate opportunity to file a timely notice of
appeal.
I.
BACKGROUND
The
petitioner is a monolingual Spanish speaker who is a native
and citizen of the Dominican Republic. On November 23, 2015,
a federal grand jury sitting in the District of Puerto Rico
returned a three-count indictment charging him with
unlawfully transporting noncitizens (count 1), unlawful
reentry into the United States by a deported noncitizen
(count 2), and failure to heave to a vessel (count 3).
See 8 U.S.C. §§ 1324(a)(1)(A)(i),
1326(b)(1); 18 U.S.C. § 2237(a)(1). Roughly three months
later, the petitioner entered into a plea agreement (the
Agreement), wherein he agreed to plead guilty to count 2
(unlawful reentry into the United States by a deported
noncitizen). In exchange, the government agreed to dismiss
the other two counts. The Agreement memorialized, inter alia,
the parties' stipulation to a total offense level (TOL)
of 21, but contained no stipulation as to the
petitioner's criminal history category (CHC).
In a
section of the Agreement entitled "SENTENCING
RECOMMENDATION," the parties agreed that they would
"recommend a sentence at the lower end of the applicable
Guideline Sentencing Range." The parties further agreed
that the petitioner "may request that [his] sentence run
concurrently with any pending state sentence or state
revocation sentence that may be imposed as a result of the
current criminal conduct," and "may also argue for
a downward departure" on the basis "that his [CHC]
substantially overrepresent[ed] the seriousness of [his]
criminal conduct or the likelihood that [he] will commit
other crimes." Of particular pertinence for present
purposes, the Agreement contained a waiver-of-appeal
provision under which the petitioner surrendered the right to
appeal his conviction and sentence, "provided that [he
was] sentenced in accordance with the terms and conditions
set forth in the Sentence Recommendation provisions of [the
Agreement]."
A
probation officer prepared the presentence investigation
report (PSI Report). Consistent with the Agreement, the
probation officer recommended a TOL of 21. She assessed the
petitioner eight criminal history points, placing him in CHC
IV. The recommended guideline sentencing range (GSR) was 57
to 71 months.
Neither
party objected to the guideline calculations limned in the
PSI Report. The petitioner's then-counsel (whom we shall
call "trial counsel") filed a sentencing memorandum
in which he urged the district court to vary downward and
sentence the petitioner based on a CHC of III. Specifically,
trial counsel sought a sentence of 46 months, which fell at
the bottom of the GSR for a TOL of 21 and a CHC of III. Trial
counsel also requested that the sentence "run
concurrently with any pending state
sentence."[1]
Prior
to sentencing, a different probation officer approached trial
counsel, told him that the PSI Report had miscalculated the
petitioner's CHC, and said that two additional criminal
history points would be added. These additional points served
to elevate the petitioner from CHC IV to CHC V.
The
district court convened the disposition hearing on May 13,
2016. The court asked trial counsel whether he needed
additional time to prepare, given the change in the probation
officer's CHC calculation. Trial counsel said that he did
not need extra time, reasoning that "by adding two
additional points, it would only strengthen my position as to
the overrepresentation of [the petitioner's] criminal
history." He added that he would still be able to pursue
his request for a downward departure.[2] He then presented his
argument for a 46-month sentence. The government made clear
that it was "not objecting or arguing against" such
a sentence, which was "discussed as part of the plea
negotiations." Rather, the government was "standing
by the [Agreement]" and "recommending a sentence at
the lower end of the applicable guideline range based on a
[TOL] of 21, according to the [CHC] that the Court
accepts."
When
all was said and done, the district court adopted the
probation officer's revised recommendation, assessed ten
criminal history points, and placed the petitioner in CHC V.
Using the agreed TOL of 21, the court set the GSR at 70 to 87
months. It proceeded to impose a 70-month term of immurement
to run consecutively ...