Likewise, appellant waived his argument that the district court erred in allowing him to plead guilty to an indictment that was not supported by sufficient evidence and which was based on perjured statements. See United States v. Lujan, 324 F.3d 27, 30 (1st Cir. 2003) (a guilty plea waives all non-jurisdictional challenges to a criminal conviction); United States v. Cotton, 535 U.S. 625, 629-631 (U.S. 2002) (concluding claim that indictment was defective because it failed to include drug quantity was not jurisdictional). Though related, appellant's claim that his plea was involuntary is not waived, however.
After negotiating an agreement with the government, petitioner, Alberto Lujan, pled guilty to conspiracy to possess with intent to distribute and to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to imprisonment for 292 months, followed by five years of supervised release. He was also fined in the amount of $1,000,000.00. That sentence was affirmed on appeal. See United States v. Lujan, 324 F.3d 27 (1st Cir. 2003). He now seeks habeas corpus relief, asserting that his trial counsel provided constitutionally deficient representation at sentencing.
Cordero, 42 F.3d at 699. Although not all of these cases expressly apply the Tollett holding, we have ruled that a guilty plea waives an appeal based on: claims of insufficient evidence of an interstate commerce nexus, United States v. Cruz-Rivera, 357 F.3d 10, 14 (1st Cir.2004); a Rule 16 discovery violation claim, United States v. Rodriguez-Castillo, 350 F.3d 1, 3-4 (1st Cir. 2003); a Kastigar claim based on the Fifth Amendment, United States v. Lujan, 324 F.3d 27, 30 (1st Cir.2003); a claim based on a so-called "jurisdictional" element of a criminal statute, United States v. Gonzalez, 311 F.3d 440, 442-44 (1st Cir.2002); a suppression claim based on a federal statute, United States v. Valdez-Santana, 279 F.3d 143, 145-46 (1st Cir.2002); a Speedy Trial Act claim, United States v. Gonzalez-Arimont, 268 F.3d 8, 11-13 (1st Cir.2001); an extradition claim, United States v. Torres-Gonzales, 240 F.3d 14, 16 (1st Cir.2001); a constitutional challenge to a criminal statute, United States v. Martinez-Martinez, 69 F.3d 1215, 1224 (1st Cir. 1995); a Fourth Amendment suppression claim, Cordero, 42 F.3d at 699; a statute of limitations claim, Acevedo-Ramos v. United States, 961 F.2d 305, 307-09 (1st Cir.1992); and a challenge to the voluntariness of a confession, United States v. Wright, 873 F.2d 437, 442 (1st Cir. 1989). The Court reasoned in Tollett that a guilty plea "represents a break in the chain of events which has preceded it in the criminal process," 411 U.S. at 267
The court quite reasonably determined that Pérez might be or become in possession of some of the illgotten gains of the conspiracy. Cf. United States v. Lujan, 324 F.3d 27, 34 (1st Cir. 2003) (stating that "the district court must consider, among other things . . . the need to deprive the defendant of ill-gotten gains"). 2. Government's Appeal from Olivero's Sentence
Those arguments are foreclosed by our prior decisions holding that express consideration of and findings concerning a defendant's ability to pay and other relevant factors are not required. See United States v. Rowe, 268 F.3d 34, 39 (1st Cir. 2001); United States v. Lujan, 324 F.3d 27, 34 (1st Cir. 2003). Here, moreover, the district court did expressly consider Gambaro's ability to pay and other relevant factors and made express findings that the fine imposed was warranted in light of those factors.
In such circumstances, absent information in the record suggesting otherwise, we assume that the court understood that it could depart but decided not to do so as a matter of discretion. See United States v. Lujan, 324 F.3d 27, 32 (1st Cir. 2003); see also United States v. Scott, 387 F.3d 139, 143 (2d Cir. 2004); United States v. Williams, 355 F.3d 893, 901 (6th Cir. 2003); United States v. Heredia-Cruz, 328 F.3d 1283, 1289-90 (10th Cir. 2003); United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). Kornegay asserts that the district court believed that it did not have the authority to grant the departure based on its statement that "if I look at all the relevant material, I cannot find that this departure is authorized."
Dr. Chartock noted that these substances might not be available in prison, and he said that altering the treatment regime "may result in destabilizing Mr. Derbes, causing him to revert to a deep depression and significant panic and anxiety." The PROTECT Act changed the standard of review applied to departures from the guidelines, eliminating the deference previously accorded to a district court's application of the guidelines to the facts of the case, see, e.g., United States v. Lujan, 324 F.3d 27, 31 n. 5 (1st Cir. 2003) (discussing deference); instead Congress requires us to review sentencing departures de novo, giving deference only to the district court's observation of witnesses and raw factual findings. 18 U.S.C.A. § 3742(e) (2004); United States v. Thurston, 358 F.3d 51, 70 (1st Cir. 2004).
Prior to the enactment of the PROTECT Act, we reviewed the determination that the facts of a case justified a departure only for an abuse of discretion. See United States v. Lujan, 324 F.3d 27, 31 n. 5 (1st Cir. 2003). The Guidelines, in their current form, recognize "aberrant behavior" as a legitimate ground for a downward departure.
Under Koon, our review under the remaining two parts was for abuse of discretion only. See Koon, 518 U.S. at 96-100, 116 S.Ct. 2035; United States v. Lujan, 324 F.3d 27, 31 n. 5 (1st Cir. 2003); United States v. Martin, 221 F.3d 52, 55 (1st Cir. 2000).
In its brief, the United States contended that Rosa-Ortiz waived his right to challenge the indictment when he entered an unconditional plea of guilty. See United States v. Lujan, 324 F.3d 27, 30 (1st Cir. 2003) (a guilty plea waives all nonjurisdictional challenges to a criminal conviction). At oral argument, however, the government correctly acknowledged that Rosa-Ortiz's guilty plea does not preclude him from arguing on appeal that the statute of conviction does not actually proscribe the conduct charged in the indictment.