Vicious Opinion Criticizes Defendant for 'Burying Head in the Sand'

By Casey C. Sullivan, Esq. on April 17, 2015 | Last updated on March 21, 2019

First Circuit Judge Ojetta Thompson pulled no punches in rejecting an appeal from a criminal defendant who plead guilty to leading a conspiracy to import cocaine into Puerto Rico. Miguelito Arroyo-Blas had appealed his sentence, which he argued was based on improper categorization of his criminal history.

Those objections don't matter, Thompson held -- and she wasn't nice about it. Arroyo-Blas waived his right to appeal in the plea agreement and couldn't simply ignore that now.

First, the Objections

As part of his plea agreement, Arroyo-Blas was to receive a sentence of between 180 and 204 months. Under federal sentencing rules, he would have had a Total Offense Level of 35, assuming he had a Criminal History Category I. However, the plea explicitly made no findings as to his criminal history. When he was sentenced, his sentencing report noted that the had a prior conviction and treated him as having a Category II criminal history. He was sentenced to 188 months.

Arroyo-Blas's contention at sentencing, and on appeal, was that he should be treated as a Category I offender. Under Category I, his sentencing range would be 168 to 210 months, while under Category II it would be 188-235 months. By sentencing him to 188 months, instead of 180 months, the lowest allowed by the plea deal, Arroyo-Blas argued that the trial court erroneously applied the higher categorization.

Judge Thompson refused to directly address the claim however, since Arroyo-Blas's plea deal very explicitly waived his right to appeal.

And Now, the Bench Slap

The First Circuit wasn't kind in rejecting Arroyo-Blas's appeal. In a footnote, the opinion called out the "eyebrow-raising move" of neither party providing a transcript from the sentencing. Thompson noted that, though the waiver of appeal is the central issue here, Arroyo-Blas's lawyer failed to address it "in any meaningful way." Only two sentences referenced it, one of which, Thompson writes, used a "straight-up cite, with no explanation."

But the real brutality is in the opening. It's so good we have to quote the whole thing:

The ostrich's undeserved claim to fame is that it buries its head in the sand instead of facing danger. Parties to litigation sometimes act like this, too. Case in point is our appellant, Miguelito Arroyo-Blas, who by ignoring a plea agreement's clear waiver of appeal provision fares no better here than we imagine our proverbial ostrich does when confronted by a predator in the wild.

Talk about setting the tone! The opinion is full of such writing, so read the whole thing.

And remember, lawyers in the First Circuit, don't expect to get away with simply ignoring your problems, in the hope they'll go away.

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