United States of America v. Julio I. Rivera

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-3133
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UNITED STATES OF AMERICA
v.
JULIO I. RIVERA,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-18-cr-00518-001)
District Judge: Honorable Madeline C. Arleo
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 18, 2022
Before: HARDIMAN, PORTER and FISHER, Circuit
Judges.
(Filed: March 17, 2023)

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Peter W. Till
Law Office of Peter W. Till
105 Morris Avenue, Suite 201
Springfield, NJ 07081
Counsel for Appellant
Mark E. Coyne
Richard J. Ramsay
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Julio Rivera, a former Newark police officer, pleaded
guilty to accepting corrupt payments from brothel owners and
preparing false tax returns. He did so pursuant to a plea
agreement that waived his right to file certain appeals. At the
end of the hearing at which Rivera pleaded guilty, the District
Court stated both that “I’m going to conditionally accept this
plea,” and “I anticipate that I will accept that plea . . . , but I’m
allowing the opportunity for the Court to review all the
information . . . contained in the final presentence report.”
App. 53. Nine months later, Rivera moved to withdraw his
plea, claiming the District Court had deferred acceptance of it
until the sentencing, which had not taken place yet. Therefore,
he said, Federal Rule of Criminal Procedure 11(d) permitted

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him to withdraw his plea “for any reason or no reason.” The
District Court denied Rivera’s motion, holding that while it had
deferred acceptance of the plea agreement, it had accepted the
plea itself—so the plea could not be withdrawn absent “a fair
and just reason,” which Rivera had not shown. See Fed. R.
Crim. P. 11(d)(2)(B). At sentencing, the District Court
accepted the plea agreement and imposed the agreed upon
sentence. For the reasons that follow, we will enforce the
waiver of Rivera’s right to appeal his sentence and affirm the
judgment of the District Court.
I.
A. Factual History
Appellant Julio Rivera was a police officer with the
Newark Police Department from 1993 to 2018. According to
the facts contained in the presentence report and found by the
District Court, Rivera collected $78,941 in bribes from three
brothel owners in Newark. In exchange for the bribes, he
protected the owners from arrest, used law enforcement
resources to assist them, and made things difficult for
competing brothels. Rivera also underreported his income on
his tax returns by excluding the income from the bribes, for
which he should have paid $17,408 in federal taxes.
In 2018, a grand jury in the District of New Jersey
brought a fourteen-count indictment against Rivera. Rivera and
the Government then entered into a plea agreement under
which Rivera pleaded guilty to one count of accepting corrupt
payments with the intent to be influenced and rewarded, in
violation of 18 U.S.C. § 666(a)(1)(B)–(2), and one count of
aiding and assisting in the preparation of false tax returns, in
violation of 26 U.S.C. § 7206(2). In return, the Government
agreed to move to dismiss the remaining 12 counts of the

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indictment if Rivera pleaded guilty and was sentenced to 46
months’ incarceration. See Fed. R. Crim. P. 11(c)(1)(C)
(permitting a plea agreement under which the government
“agree[s] that a specific sentence . . . is the appropriate
disposition of the case”). The plea agreement also included an
appellate waiver that Rivera attested he read and fully
understood:
As set forth in Schedule A, this Office and Rivera
waive certain rights to file an appeal, collateral
attack, writ, or motion after sentencing,
including but not limited to an appeal under 18
U.S.C. § 3742 or a motion under 28 U.S.C.
§ 2255, which challenges the conviction or
sentence imposed by the Court if the plea is
accepted and the sentence is imposed in
accordance with the terms of this agreement.
App. 30 (emphasis added). However, the appellate waiver’s
terms, “[a]s set forth in Schedule A,” differed from those
mentioned in the plea agreement letter:
Rivera knows that he has and, except as noted
below in this paragraph, voluntarily waives, the
right to file any appeal, any collateral attack, or
any other writ or motion, including but not
limited to an appeal under 18 U.S.C. § 3742 or a
motion under 28 U.S.C. § 2255, which
challenges the sentence imposed by the
sentencing Court if the sentence imposed is the
Stipulated Sentence.
App. 35–36 (emphasis added).

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B. Procedural History
On January 9, 2020, Rivera appeared before the District
Court in order to plead guilty. The District Court conducted a
colloquy as required by Federal Rule of Criminal Procedure
11(b), including questioning Rivera under oath to ensure he
was voluntarily and knowingly entering the plea. The colloquy
included Rivera’s understanding of the appellate waiver:
THE COURT: Specifically, do you understand if
I sentence you to 46 months in prison that you
cannot appeal, challenging your sentence?
THE DEFENDANT: Yes.
THE COURT: Do you understand if I impose a
term of imprisonment of 46 months, you will not
be able to file any kind of appeal, a 2255, or any
other challenge or attack on your term of
imprisonment or any other aspect of your
sentence?
THE DEFENDANT: I do, your Honor.
App. 48. Rivera affirmed that he committed the essential
elements of the charges. The District Court then found that
Rivera was competent, he knowingly and voluntarily entered
the plea, and the plea was supported by an independent basis
in fact.
What occurred next is the subject of this appeal. The
District Court stated: “So I’m going to conditionally accept this
plea, based upon my receipt and examination of the final
pretrial report, and the Defendant is now adjudged guilty of the
offenses.” App. 53. After explaining that Rivera would have
the opportunity to read the presentence report prior to

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sentencing, the District Court concluded, “I anticipate that I
will accept that plea, I will not reject the plea at the time of
sentencing, but I’m allowing the opportunity for the Court to
review all the information as well contained in the final
presentence report.” Id.
Nine months later, Rivera moved to withdraw his plea
under Federal Rule of Criminal Procedure 11(d)(1), which
allows a defendant to withdraw his guilty plea “before the court
accepts the plea, for any reason or no reason.” Rivera argued
the District Court had not accepted his plea at the hearing, but
instead deferred acceptance until sentencing. Alternatively, he
argued he could withdraw his plea under Rule 11(d)(2)(B)—
which permits withdrawal “after the court accepts the plea, but
before it imposes [a] sentence if . . . the defendant can show a
fair and just reason for requesting the withdrawal”—based on
his innocence, weaknesses in the Government’s case, and the
lack of prejudice to the Government should his plea be
withdrawn. The District Court denied Rivera’s motion, holding
it had accepted Rivera’s guilty plea at the plea hearing and
deferred acceptance only of the plea agreement pending its
review of the presentence report. Additionally, the District
Court held Rivera failed to show a “fair and just reason” for
requesting withdrawal under Rule 11(d)(2)(B) after the Court
accepted the plea.
Rivera’s sentencing hearing took place a year later. At
the hearing, the District Court accepted the plea agreement.
The Government requested that the Court impose the stipulated
46-month sentence; Rivera asked for a modified term, blaming
his plea attorney for the entry of what he argues was an
unknowing and involuntary plea. The District Court then
considered the 18 U.S.C. § 3553(a) factors before sentencing
Rivera to 46 months’ imprisonment.
Rivera appeals.

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II.1
Although the arguments in Rivera’s brief are far from
clear, we discern one primary contention: the District Court
should have allowed him to withdraw his plea under Federal
Rule of Criminal Procedure 11(d)(1) because the Court did not
clearly accept his guilty plea prior to his attempted withdrawal.
If the District Court accepted Rivera’s guilty plea prior to his
motion to withdraw, then Rivera could withdraw the plea only
if he could “show a fair and just reason.” Fed. R. Crim. P.
11(d)(2)(B). Conversely, if the District Court did not accept
Rivera’s guilty plea prior to his motion to withdraw, then he
could withdraw “for any reason or no reason.” Fed. R. Crim.
P. 11(d)(1). Rivera also challenges his sentence, arguing the
District Court failed to sufficiently consider the 18 U.S.C.
§ 3553(a) factors during sentencing. But to determine whether
Rivera may raise these issues on appeal, we must address the
scope and validity of the appellate waiver in Rivera’s plea
agreement.
“A criminal defendant may knowingly and voluntarily
waive many of the most fundamental protections afforded by
the Constitution.” United States v. Mezzanatto, 513 U.S. 196,
201 (1995). This can include waiving the opportunity to appeal
via a waiver provision in a plea agreement. United States v.
Khattak, 273 F.3d 557, 561 (3d Cir. 2001). This Court “will
enforce an appellate waiver and decline to review the merits of
an appeal where we conclude (1) that the issues [the defendant]
pursues on appeal fall within the scope of his appellate waiver
1 The District Court had jurisdiction under 18 U.S.C.
§ 3231. This Court has jurisdiction under 18 U.S.C. § 3742
(review of a sentence) and 28 U.S.C. § 1291 (final decisions of
district courts).

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and (2) that he knowingly and voluntarily agreed to the
appellate waiver, unless (3) enforcing the waiver would work
a miscarriage of justice.” United States v. Grimes, 739 F.3d
125, 128–29 (3d Cir. 2014) (quoting United States v. Wilson,
707 F.3d 412, 414 (3d Cir. 2013)).
A. Scope of Appellate Waiver
First, we must determine whether Rivera’s appeal falls
within the scope of his appellate waiver. Id. Whether a claim
raised on appeal falls within the scope of an appellate waiver
is a question we review de novo. Wilson, 707 F.3d at 414. In
determining the scope of an appellate waiver provision, we
look to the “well-established principle that plea agreements,
although arising in the criminal context, are analyzed under
contract law standards.” United States v. Goodson, 544 F.3d
529, 535 n.3 (3d Cir. 2008) (internal quotation marks, citation,
and alternations omitted). The language of the appellate
waiver, like that of a contract, is critical to the analysis, and
“such waivers must be ‘strictly construed.’” United States v.
Corso, 549 F.3d 921, 927 (3d Cir. 2008) (quoting Khattak, 273
F.3d at 562). “Thus, we begin our analysis as we would with
any contract, by examining first the text.” United States v.
Damon, 933 F.3d 269, 272–73 (3d Cir. 2019) (internal
quotation marks, citation, and alteration omitted).
Here, there is an inconsistency between the plea
agreement letter and its Schedule A concerning the scope of
the appellate waiver.2 The plea agreement letter states, “As set
forth in Schedule A, this Office and Rivera waive certain rights
2 The parties do not bring up this issue in their briefing.
However, we must discuss the inconsistency to determine the
scope of the appellate waiver.

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to file an appeal . . . which challenges the conviction or
sentence imposed by the Court.” App. 30 (emphasis added).
But the waiver “set forth in Schedule A” merely states, “Rivera
knows that he has and, except as noted below in this paragraph,
voluntarily waived the right to file any appeal . . . which
challenges the sentence imposed by the sentencing Court.”
App. 35 (emphasis added). When the reader follows the plea
agreement letter’s clear instructions, there is only one
reasonable interpretation of scope of the appellate waiver. The
plea agreement letter directs the reader to Schedule A to
determine the waiver’s scope: Rivera is barred from raising
challenges on appeal “[a]s set forth in Schedule A.” App. 35.
Schedule A states that Rivera waives his right to appeal his
sentence but is silent as to his conviction. So when we strictly
construe the text of the waiver, it is clear that Rivera did not
waive the right to appeal his conviction. Accordingly, we
conclude that Rivera’s appellate waiver covers any challenge
he raised against his sentence but does not cover challenges to
his conviction. He may appeal the latter, but not the former.
B. Rivera’s Sentence
Rivera challenges the procedural reasonableness of his
sentence, arguing the District Court failed to sufficiently
consider the 18 U.S.C. § 3553(a) factors during sentencing.
But, as discussed above, his plea waived challenges to his
sentence. As such, Rivera’s appellate waiver forecloses his
challenge unless he did not knowingly and voluntarily agree to
the waiver or enforcing the waiver would work a miscarriage
of justice. Grimes, 739 F.3d at 128–29. Rivera does not
challenge the knowing and voluntary nature of his waiver on
appeal, so we must determine whether enforcing the waiver
would constitute a miscarriage of justice.

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To determine whether enforcing a waiver in a plea
agreement works a miscarriage of justice, we consider “[t]he
clarity of the error, its gravity, its character (e.g., whether it
concerns a fact issue, a sentencing guideline, or a statutory
maximum), the impact of the error on the defendant, the impact
of correcting the error on the government, and the extent to
which the defendant acquiesced in the result.” Khattak, 273
F.3d at 563 (quoting United States v. Teeter, 257 F.3d 14, 25–
26 (1st Cir. 2001)). To qualify as a miscarriage of justice, “[i]t
is not enough that an issue [is] meritorious”; after all, appellate
waivers are intended to preclude review not just of frivolous
questions, but of difficult and debatable legal issues we would
otherwise consider. United States v. Castro, 704 F.3d 125, 136
n.6 (3d Cir. 2013). Rather, the miscarriage of justice exception
to appellate waivers applies only in “unusual
circumstance[s] . . . with the aim of avoiding manifest
injustice.” Grimes, 739 F.3d at 130 (quoting Castro, 704 F.3d
at 136).
Enforcing the appellate waiver would not constitute a
miscarriage of justice because there was no error in the first
instance. Rivera stipulated to a 46-month sentence in the plea
agreement and agreed the term was reasonable. During the
Rule 11 colloquy, the District Court explained to Rivera that
because he entered a stipulated plea, it would not exercise
discretion to impose a sentence other than the fixed 46 months.
The District Court then sentenced Rivera to the stipulated
sentence. Because there was no error, it is not a miscarriage of
justice to enforce the appellate waiver.
C. Rivera’s Conviction
We have established that Rivera may not challenge his
sentence on appeal, but that does not necessarily foreclose his

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primary argument here: that the District Court should have
allowed him to withdraw his guilty plea. Clearly, the
withdrawal of a guilty plea does not concern a defendant’s
sentence. Instead, it is a challenge to a conviction on appeal, as
other Circuits—and this Court in non-precedential opinions—
have concluded. United States v. Toth, 668 F.3d 374, 378 (6th
Cir. 2012); United States v. Alcala, 678 F.3d 574, 578 & n.1
(7th Cir. 2012); United States v. Elliott, 264 F.3d 1171, 1174
(10th Cir. 2001); United States v. Daniels, 278 F. App’x 161,
162 (3d Cir. 2008); United States v. Roskovski, 2022 WL
4116911, at *3 (3d Cir. Sept. 9, 2022). See also United States
v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (per curiam).
Thus, Rivera’s appeal of the denial to withdraw his
guilty plea challenges the conviction and falls outside the scope
of the appellate waiver. We will exercise jurisdiction and
review the merits of Rivera’s appeal.
D. Withdrawal of Guilty Plea
Rivera argues that the District Court should have
allowed him to withdraw his guilty plea. We must determine
whether the District Court accepted Rivera’s guilty plea during
the Rule 11 hearing, prior to his attempted withdrawal. If the
Court did not, Rivera should have been permitted to withdraw
his plea “for any reason or no reason.” Fed. R. Crim. P.
11(d)(1). If the Court had accepted the plea, then Rivera’s
withdrawal would only have been permissible upon a showing
of a “fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B).
1. Standard of Review
We review the denial of a motion to withdraw a guilty
plea for abuse of discretion. United States v. Wilson, 429 F.3d
455, 458 (3d Cir. 2005). But we have not yet established the

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appropriate standard of review for the “antecedent question”—
whether the district court accepted the guilty plea prior to the
defendant filing a motion to withdraw. United States v.
Andrews, 857 F.3d 734, 739 (6th Cir. 2017); United States v.
Overton, 24 F.4th 870, 874–75 (2d Cir. 2022). There is no
factual dispute about what occurred during the proceedings.
Instead, we need only determine whether the District Court’s
statements during the plea hearing constituted acceptance of
Rivera’s guilty plea. This is a legal question because “it
implicates the appropriate standard to apply under Rule 11(d)
for the purposes of deciding a motion to withdraw.” Andrews,
857 F.3d at 739.
Thus, like other Circuits that have considered this issue,
we will evaluate the question of whether a guilty plea was
accepted on a de novo basis. See, e.g., United States v. Byrum,
567 F.3d 1255, 1259 (10th Cir. 2009) (stating “de novo review
is more appropriate”); United States v. Arafat, 789 F.3d 839,
844 (8th Cir. 2015) (holding it would “independently
scrutinize[] the record” to determine whether the district court
accepted a plea) (citation omitted); United States v. Jones, 472
F.3d 905, 909 (D.C. Cir. 2007) (“our review is de novo”);
Overton, 24 F.4th at 875 (“de novo review is [the] more
appropriate” standard (quoting Byrum, 567 F.3d at 1259)).
2. Acceptance of the Guilty Plea
We now turn to our de novo review of whether the
District Court accepted Rivera’s plea. The answer to this
question determines whether Rivera was permitted to withdraw
the plea for “any reason” or whether he needed a “fair and just
reason.” Fed. R. Crim. P. 11(d). If he should have been
permitted to withdraw for any reason, then the District Court
abused its discretion by denying his motion to withdraw. But

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if Rivera needed a “fair and just reason,” then we must
determine whether he provided such a reason. If he provided
such a reason, then the District Court abused its discretion by
denying his motion to withdraw. In order to know which of
these two situations we are dealing with, we must determine
whether the plea was accepted.
“Guilty pleas can be accepted while plea agreements are
deferred, and the acceptance of the two can be separated in
time.” United States v. Hyde, 520 U.S. 670, 674 (1997); see
also Fed. R. Crim. P. 11(c)(3)(A) (“[T]he court may . . . defer
a decision [on whether to accept a plea agreement] until [it] has
reviewed the presentence report.”). To determine if a guilty
plea was accepted, we look to the district court’s language and
its context, including whether it adjudged the defendant guilty
following the plea colloquy. Byrum, 567 F.3d at 1261. Other
Circuits have seen the fact of a completed Rule 11 colloquy as
strong evidence that the plea has been accepted. See id.; United
States v. Battle, 499 F.3d 315, 321–22 (4th Cir. 2007); Arafat,
789 F.3d at 846. This is logical because when a Rule 11
colloquy occurs, the defendant admits to his guilt as well as the
facts relating to his criminal conduct. He also has been advised
by the court of the consequences of pleading guilty. Thus, after
“such a colloquy, a defendant has no reason to believe he can
freely withdraw his plea.” Byrum, 567 F.3d at 1261.
During the Rule 11 colloquy, the District Court spoke
imprecisely, often using the terms “plea” and “plea agreement”
interchangeably. This includes, most importantly, when the
District Court stated:
THE COURT: So I’m going to conditionally
accept this plea, based upon my receipt and
examination of the final pretrial report, and the

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Defendant is now adjudged guilty of the
offenses...
I anticipate that I will accept that plea, I will not
reject the plea at the time of sentencing.
App. 53. Despite the District Court’s imprecision, the
transcript shows it accepted Rivera’s guilty plea. The District
Court conducted a Rule 11 colloquy during which it asked
Rivera if he was pleading guilty of his own free will and
elicited the factual basis for each element of Rivera’s charged
crimes. Though the District Court ended the hearing by stating
it would “conditionally accept [Rivera’s] plea,” it
unequivocally said, “[T]he Defendant is now adjudged guilty
of the offenses.” Id.
The use of the term “conditional” does not change the
analysis. “Rule 11, in fact, contemplates an acceptance of a
guilty plea conditioned on the ultimate acceptance or rejection
of the plea agreement. . . . [but] does not necessarily envision
a deferral of a decision on the plea itself.” Byrum, 567 F.3d at
1261. Conditional acceptance signifies that if the District Court
had rejected the plea agreement due to the presentence report,
then Rivera would have been permitted to withdraw his guilty
plea. But that did not happen here. See id. at 1263 (finding the
district court’s provisional acceptance of a guilty plea proper,
after the district court stated, “I am not going to accept the plea
until I review the presentence report . . . I will accept it
provisionally subject to that review.”) (emphasis omitted); see
also United States v. Robinson, 587 F.3d 1122, 1126 (D.C. Cir.
2009) (“While the district court at times used the terms ‘plea’
and ‘plea agreement’ interchangeably, . . . the transcript of the
plea hearing, read in its entirety, establishes that the court
accepted the appellants’ guilty pleas.”).

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Based on the entire record it is clear the District Court
accepted Rivera’s guilty plea. While the Court was imprecise
at certain moments, it accepted the plea at the Rule 11 colloquy
months prior to Rivera’s attempt to withdraw it.
3. “Fair and Just Reason” for Withdrawal
Because the District Court accepted Rivera’s plea
before he filed his motion to withdraw, Rivera needed to
provide a “fair and just reason” to warrant the withdrawal. Fed.
R. Crim. P. 11(d)(2)(B). We now consider whether Rivera’s
provided reasons were fair and just.
The defendant “bears a substantial burden of showing a
fair and just reason for the withdrawal of his plea.” United
States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011) (internal
quotation marks and citation omitted). “A shift in defense
tactics, a change of mind, or the fear of punishment are not
adequate reasons to impose on the government the expense,
difficulty, and risk of trying a defendant who has already
acknowledged his guilt by pleading guilty.” United States v.
Jones, 336 F.3d 245, 252 (3d Cir. 2003) (quoting United States
v. Brown, 250 F.3d 811, 815 (3d Cir. 2001)). When evaluating
whether there are “fair and just” reasons for a withdrawal of a
plea, a court “must consider three factors . . . : (1) whether the
defendant asserts his innocence; (2) the strength of the

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defendant’s reasons for withdrawing the plea; and (3) whether
the government would be prejudiced by the withdrawal.” Id.3
Despite doing so at the District Court, Rivera does not
assert his innocence on appeal. However, he offers arguments
relevant to the second and third factors.
With regard to the second factor—the strength of his
reasons for withdrawal—Rivera says he believed the guilty
plea would not be accepted until sentencing and we should
defer to his understanding. But Rivera cites no caselaw that
prioritizes a defendant’s understanding over the plain language
of the District Court—that “the Defendant is now adjudged
guilty of the offenses.” App. 53. Rivera also contends the
Government selectively prosecuted him and ignored the
corrupt brothel owners. Raising this argument on appeal for the
first time, Rivera does not allege any “unjustifiable standard
such as race, religion, or other arbitrary classification”
underlying his prosecution—and without this kind of “arbitrary
classification,” he cannot successfully advance a selective
prosecution claim. Wayte v. United States, 470 U.S. 598, 608
(1985) (citation omitted).
Turning to the third factor—whether the Government
would be prejudiced by a withdrawal—Rivera’s arguments are
unpersuasive. He contends that the fact that witnesses’
memories are fading does not supersede his criminal rights.
3 Jones cites the “fair and just” standard from the former
Federal Rule of Criminal Procedure 32. The Rules were
amended in 2002 to “move the substance of prior Rule 32
authorizing defendants to seek the withdrawal of a guilty plea
prior to sentencing to Fed. R. Crim. P. 11(d). Because the
substance of the rule has not changed, precedent referring to
Rule 32 continues to be authoritative.” Wilson, 429 F.3d at 458
n.2.

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Even if Rivera was correct, which he is not, “the Government
need not show such prejudice when a defendant has failed to
demonstrate that the other factors support a withdrawal of the
plea.” Jones, 336 F.3d at 255. Because Rivera failed to
meaningfully reassert his innocence or provide a strong reason
for withdrawing his plea, the Government was not required to
show prejudice. Therefore, Rivera does not provide a “fair and
just reason” for withdrawal, and the District Court did not
abuse its discretion in denying the motion.
* * *
Rivera’s attack on the District Court’s denial of the
motion to withdraw his guilty plea falls outside of the scope of
his appellate waiver because Rivera did not waive the right to
appeal his conviction. When reviewing Rivera’s contention on
the merits, it fails. The District Court accepted his guilty plea
at the Rule 11 hearing. Because Rivera does not provide a “fair
and just” reason for withdrawal, we conclude the District Court
did not abuse its discretion in denying the motion to withdraw
the guilty plea.
III.
For these reasons, we will enforce the waiver of
Rivera’s sentence and affirm the judgment of the District
Court.

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