The opinion of the court was delivered by: Straub, Circuit Judge:
Submitted: November 17, 2010
Before: JACOBS, Chief Judge, KEARSE and STRAUB, Circuit Judges.
Defendant-Appellant Manuel Vigil appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge) convicting him of conspiracy to commit murder in aid of racketeering and of using a firearm during a crime of violence. The government argues that Vigil's appeal should be dismissed in light of his waiver of the right to appeal his sentence. Because we conclude that Vigil's waiver of the right to appeal precludes his claim of Federal Rule of Criminal Procedure 32 error and his claim based on the absence of a Spanish interpreter during a portion of his sentencing proceeding, we dismiss the appeal.
Defendant-Appellant Manuel Vigil appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge) convicting him, following a guilty plea, of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), and of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The government argues that Vigil's appeal should be dismissed on the ground that Vigil's waiver of the right to appeal his sentence forecloses his claims on appeal. Because we conclude that Vigil's claim of Federal Rule of Criminal Procedure 32 error and his claim based on the absence of a Spanish interpreter during a portion of his sentencing proceeding are foreclosed by Vigil's appeal waiver, we dismiss the appeal.
On March 14, 2008, Manuel Vigil was charged in a superseding indictment that alleged that Vigil, as a member of La Mara Salvatrucha, a gang also known as "MS-13," conspired to murder unspecified members of the Bloods gang. The indictment also charged two of Vigil's co-defendants, who were also alleged MS-13 members, with murdering Pashad Gray, a member of the Bloods gang, on or about December 24, 2006.
Vigil entered into a plea agreement with the government on May 8, 2008. The agreement stated that Vigil would plead guilty to counts seven and eight of the superseding indictment, which charged Vigil with conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), and with using a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The agreement included an appeal-waiver provision that provided that Vigil "agrees not to file an appeal or otherwise challenge . . . the conviction or sentence in the event that the Court imposes a term of imprisonment of 195 months or below."
On May 8, 2008, Vigil pleaded guilty to counts seven and eight of the superseding indictment before a magistrate judge in the District Court. A Spanish interpreter was present for the entirety of the plea proceeding. Using the interpreter, Vigil confirmed that the plea agreement had been translated into Spanish and that he had carefully reviewed the agreement with his lawyer before signing it. Vigil also stated that he understood that he was waiving his right to appeal any sentence of 195 months' incarceration or below. During his plea allocution, Vigil testified that the factual basis for his guilty plea was that, sometime in the summer of 2006, he rode in a car with other MS-13 members, one of whom Vigil knew was carrying a gun, while looking for a member of the Bloods gang to kill. Vigil did not admit to actually killing a member of the Bloods gang, nor to killing Pashad Gray.
Vigil's presentence report, prepared on October 24, 2008, calculated Vigil's Federal Sentencing Guidelines range as 240 months. The report stated that Vigil fired a weapon during the conspiracy in question and that he also should be held accountable for the murder of Pashad Gray. Both Vigil and the government objected to the presentence report's Guidelines-range calculation. By letter dated February 4, 2009, the government informed the Court that the presentence report was "factually incorrect" because the government had no evidence either that Vigil, or anyone else, fired a weapon during the charged conspiracy, or that Vigil was in any way involved in Pashad Gray's murder. Accordingly, the government informed the Court that the government and Vigil agreed that the proper total Guidelines range was 157 to 181 months' incarceration.
Vigil was sentenced by the District Court on February 5, 2009. At the beginning of the sentencing proceeding, no Spanish interpreter was present. During this portion of the proceeding, the government again informed the District Court that both the government and Vigil disagreed with the presentence report's Guidelines-range calculation. The Court responded: "Okay. All right." The Court then discussed the proper Guidelines range with the parties and briefly discussed whether Vigil was seeking a below-Guidelines sentence. The Court then asked Vigil if he had read the presentence report and if he was ready for sentencing. Vigil responded "[y]es" to both questions, without the aid of an interpreter. At that point, Vigil's counsel told the Court that he believed that Vigil had used a Spanish interpreter in the past and stated that: "I think it might be a little bit better under the circumstances, this is a contested situation, it might be best if we had an interpreter." The District Court then paused the proceedings until a Spanish interpreter was present. After resuming, the Court repeated its two questions with the aid of the interpreter and ultimately sentenced Vigil to a total of 157 months' incarceration. The District Court made no determinations or findings of fact concerning the disputed portions of the presentence report and did not append any determinations to the presentence report, as required by Rule 32(i)(3)(B) and (C).
Vigil filed a pro se notice of appeal on February 10, 2009. On March 9, 2009, the government moved to dismiss Vigil's appeal in light of the appeal waiver contained in Vigil's plea agreement. In response, Vigil's trial counsel sought to be relieved by filing a brief purportedly in accordance with United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000), and Anders v. California, 386 U.S. 738 (1967), but we deemed that brief deficient. After Vigil's counsel failed to comply with our subsequent orders to cure the flawed Anders brief, we directed the Clerk to appoint new appellate counsel. We also denied the government's motion to dismiss without prejudice to renewal upon the appointment of new counsel. Vigil's new appellate counsel then filed a brief on appeal asking that the case be remanded either for resentencing or for the issuance of a new or amended presentence report.
On appeal, Vigil argues that the District Court violated Rule 32(i)(3) by not making a determination on the disputed portions of the presentence report. Further, he argues that his claim of Rule 32 error should not be foreclosed by his waiver of the right to appeal. Vigil also argues that he is entitled to resentencing because there was no Spanish interpreter present at the beginning of his sentencing proceeding. In response, the government argues that Vigil's appeal should be dismissed in light of Vigil's appeal waiver, or alternatively, that the District Court's judgment should be affirmed. Because we ...