Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-2386
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS CENTENO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Stahl and Lipez,
Circuit Judges.
Irma R. Valldejuli on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Thomas F. Klumper,
Assistant U.S. Attorney, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.
August 31, 2009
Per Curiam. The substantive question that the defendant
raises in this appeal is whether the district court erred in ruling
that if the defendant asked for a criminal- history-based downward
departure or variance, that request would constitute a breach of
the plea agreement, freeing the government from abiding by the
terms of that agreement. However, a threshold issue is whether the
appeal waiver contained in the plea agreement applies to bar this
appeal. The government argues that the defendant forfeited, via
inadequate briefing, any argument that the appeal waiver is
inapplicable or unenforceable. We bypass the forfeiture issue
because the applicability and enforceability of the appeal waiver
are intertwined with the merits of the appeal, which are fully
briefed, and because we conclude, for the reasons discussed below,
that the appeal waiver is applicable and enforceable in any event.
The appeal waiver provided, in full, as follows: "The
defendant hereby agrees that if this Honorable Court accepts this
agreement and sentences him according to its terms and conditions,
defendant waives and surrenders his right to appeal the judgment
and sentence in this case." Because of the generic wording of this
waiver, determining its applicability requires perusing the rest of
the agreement to see whether the defendant was sentenced "according
to its terms and conditions." This exercise, though not
particularly difficult here, could have been avoided entirely if
the waiver were more case specific. See United States v. Acosta-
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Roman, 549 F.3d 1, 4 n.3 (1st Cir. 2008) (finding virtually
identical waiver provision to be "'simple and easily understood'"
(citation omitted) but suggesting that such provisions "make
specific reference to any terms and conditions of the plea
agreement that are not intended by the parties to be covered by the
waiver").
The defendant argues, in essence, that the court did not
sentence him "according to the terms and conditions" of the plea
agreement because it wrongly refused to consider his argument for
a lower sentence based on the overrepresentation of his criminal
history category. This is where the appeal waiver and substantive
issues overlap.
In arguing that the plea agreement permitted the
overrepresentation argument, the defendant points to the lack of a
stipulation as to the defendant's criminal history category and
characterizes the overrepresentation argument as an objection
related to the criminal history category rather than as an argument
for a "further adjustment[] or departure[] to the defendant's base
offense level" prohibited by the agreement. He also argues that
the "assessment of the criminal history category," left open by the
plea agreement, includes not only the raw calculation of that
category under USSG §§ 4A1.1 and 4A1.2 but also any reduction in
that category warranted by the overrepresentation of the
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defendant's criminal history under USSG § 4A1.3. Those arguments,
though creative, are unpersuasive for several reasons.
First, they arguably conflict both with the defendant's
repeated concession, at sentencing, that he had no objection to the
calculation of his criminal history category and with his own
previous characterization of his argument for a reduced sentence as
one for a "downward departure."
Second, that post hoc characterization is inconsistent
with the guidelines' treatment of such a reduction as a "departure"
under USSG § 4A1.3(b), rather than as part of the calculation of
the criminal history category under USSG §§ 4A1.1 and 4A1.2.
Third, rather than construing the plea agreement as a
whole, Acosta-Roman, 549 F.3d at 4, such arguments improperly focus
on certain words and phrases of the plea agreement in isolation.
Under the heading, "NO FURTHER ADJUSTMENTS OR DEPARTURES," the
parties agreed "that no further adjustments or departures to the
defendant's base offense level, pursuant to [18 U.S.C. § 3553], or
a variance from the recommended sentence of imprisonment, shall be
sought by the parties." Any ambiguity as to whether that agreed-
upon prohibition applied only to adjustments to or departures from
the "base offense level," as the defendant argues, or, rather, to
departures or variances more generally, including those related to
the defendant's criminal history, as the district court held, is
eliminated when the above-quoted sentence is read in conjunction
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with the next one, in which the parties "agree[d] that any request
for a different sentence of imprisonment constitutes a departure or
variance from the recommended sentence." Similarly, construing the
plea agreement to permit parties to argue for some departures or
variances appears contrary to the parties' intent, evidenced by
their stipulations as to sentencing guideline calculations (other
than the defendant's criminal history category), to limit the range
of disagreement and hence the ultimate sentence the court was
likely to choose. If, despite those stipulations, the defendant
could seek a downward departure under section 4A1.3(b), then the
government could seek an upward one under section 4A1.3(a), based
on its opposing view of the defendant's true criminal propensity or
likelihood of recidivism, thereby widely opening the door that the
parties attempted to shut as far as they could without knowing the
defendant's criminal history.
Fourth, and more generally, a defendant's criminal
history is often unknown at the point of a guilty plea. Allowing
defendants to seek downward departures or variances, otherwise
barred by their plea agreements, when their criminal history
categories later turn out to be higher than expected would
undermine any attempt to stipulate to a guideline sentencing range.
Accordingly, we reject the defendant's arguments and
construe the plea agreement to bar the present appeal as follows:
The key provision of the plea agreement concerning sentencing is
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the parties' agreement to "recommend a sentence of imprisonment at
the lower end of the applicable Guideline sentencing range."
Although that agreement was conditioned on "the defendant's
criminal history category exceed[ing] Category I," that condition
was met since the defendant's criminal history category was
calculated to be IV and the defendant conceded the accuracy of that
calculation. Given that criminal history category and the
defendant's stipulated total offense level of 21, his "applicable
Guideline sentencing range" was 57 to 71 months, USSG ch. 5, pt. A
(Sentencing Table), and the "lower end" of that range was 57
months. Since the district court did sentence the defendant to 57
months' imprisonment, it sentenced him "according to [the plea
agreement's] terms and conditions." Therefore, the appeal waiver
applies.
Nor would enforcing the appeal waiver here be manifestly
unjust. Cf. United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir.
2001). "As a general matter, there is nothing unjust about holding
a defendant to the bargain struck in his plea agreement." United
States v. Calderón-Pacheco, 564 F.3d 55, 59 (1st Cir. 2009). And
the bargain struck here was clearly favorable to the defendant. In
return for pleading guilty to Count 25, stipulating to
responsibility for a relatively small amount of drugs, agreeing not
to seek any further departures or variances, and waiving his right
to appeal, the defendant avoided exposure to the much longer
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sentence that could have resulted from being convicted on Count 1,
which charged a four-month-long conspiracy involving 14 individuals
and much larger amounts of drugs. Even as to Count 25, he avoided
the government's seeking an available two-level enhancement for
committing a drug offense inside a public housing project and
benefitted from a citation error in the indictment, absent which he
would have been subject to a mandatory minimum sentence of five
years (three months over the 57-month sentence ultimately imposed)
based on the amount of crack to which he stipulated.
Nor was his 57-month sentence manifestly unjust in the
sense that it was based on an "egregious" error. Cf. Teeter, 257
F.3d at 25. The only purported error identified here--the district
court's ruling that the defendant's request for a departure or
variance below the guideline range constituted a breach of the plea
agreement--was not erroneous at all, much less egregiously so, for
the reasons already discussed.
In sum, because the appeal waiver is both applicable and
enforceable, this appeal is summarily dismissed. See 1st Cir. R.
27.0(c).
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