United States v. Davis

United States Court of Appeals
For the First Circuit

No. 17-2100

UNITED STATES OF AMERICA,

Appellee,

v.

BARRY DAVIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,
and Katzmann,* Judge.

Jane F. Peachy, Assistant Federal Public Defender, for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.

May 6, 2019

*Of the United States Court of International Trade, sitting
by designation.
 LIPEZ, Circuit Judge. Appellant Barry Davis pleaded

guilty to sex trafficking crimes pursuant to a plea agreement and

was sentenced to 216 months of imprisonment. He seeks a new

sentencing hearing, claiming, in major part, that the prosecution

breached the plea agreement by providing information to Probation

and the court regarding victims of sex trafficking who were either

covered by counts that were dismissed as part of the plea

agreement, or who were never included in any counts in the

indictment. He argues that the government's actions constitute

prosecutorial misconduct invalidating his waiver of appeal. He

also contends that he was provided inadequate notice of victim

statements presented at the hearing.

After reviewing his claims, which are only partially

preserved, we affirm the sentence imposed.

I.

A. Plea Agreement

Davis was charged in a nine-count indictment with sex

trafficking by force, fraud, and coercion, in violation of

18 U.S.C. § 1591(a) and (b)(1) (Counts One, Three, Five, and

Eight); transportation of an individual with intent to engage in

prostitution, in violation of 18 U.S.C. § 2421 (Counts Two, Four,

Six, and Nine); and sex trafficking of a child by force, fraud,

and coercion, in violation of 18 U.S.C. § 1591(a), (b)(1), and

(b)(2) (Count Seven). Davis was initially charged in a four-count

- 2 -
indictment with charges related to two women, A.Z. and T.B. The

nine-count superseding indictment added charges relating to three

additional women, A.O., N.S., and C.D.

Just before trial, Davis pleaded guilty to Counts One

through Four, Eight, and Nine, pursuant to a plea agreement. These

charges related to Davis's coercive sex trafficking of A.Z., T.B.,

and C.D. In return for Davis's guilty plea, the government agreed

to dismiss Counts Five through Seven, relating to his alleged

coercive sex trafficking of A.O. and N.S., a minor. The government

further agreed not to pursue additional charges relating to

obstruction of justice or witness tampering. The parties also

expressly agreed that "[n]othing in this Plea Agreement affects

the U.S. Attorney's obligation to provide the Court and the U.S.

Probation Office with accurate and complete information regarding

this case."

With respect to the sentencing guideline calculations,

Davis and the government jointly agreed that Davis's base offense

level is 34; his offense level should be increased by three in

accordance with the count grouping principles of U.S.S.G. § 3D1.4

"because there are a total of three groups with offense levels of

34" (A.Z., T.B., and C.D.), see infra note 2; and the offense level

should be reduced by three based on Davis's acceptance of

responsibility, for a total offense level (TOL) of 34. The plea

agreement is silent as to Davis's Criminal History Category (CHC).

- 3 -
Nonetheless, the parties agreed that a sentence of incarceration

between 180 and 240 months would be reasonable and appropriate.

Finally, the plea agreement contained a waiver of Davis's right to

appeal his conviction and any sentence "within the agreed-upon

sentencing range." Davis "reserve[d] the right to claim that . .

. the prosecutor . . . engaged in misconduct that entitles [him]

to relief from [his] conviction or sentence."

B. Change of Plea Hearing, Presentence Report, Sentencing
Memoranda

At the change of plea hearing, Davis represented that he

had reviewed the plea agreement and understood the appellate

waiver.1 The government stated its belief that the guideline

sentencing range would be 188 to 235 months if Davis were found to

have a CHC of III, and 262 to 327 months if he were found to be a

career offender. Defense counsel indicated that Davis understood

these potential guideline ranges. In response to a question from

the court asking if the government expected to call witnesses at

the sentencing hearing, the government stated that it would "plan

on talking to the women who were involved in this case" to

determine if "they would like to either make an impact statement

1 Davis does not contend that his plea was not knowing and
voluntary, that he did not knowingly and voluntarily enter into
the plea agreement, or that he was not aware of the waiver of his
rights, including his rights of appeal. We have therefore omitted
the recitation of certain facts concerning these points.

- 4 -
in court or in writing." The court and defense counsel then had

the following exchange regarding these women:

Court: They have absolutely every right under the
statutes to allocute, to present to the [c]ourt, but
[a]re we having an evidentiary hearing on the
[g]uidelines?

Defense Counsel: I don't think so, your Honor. We have
an agreement on the [g]uidelines as part of the plea
agreement, so I don't think there's going to be any
evidence.

Court: So at most it's going to be victim impact
statements, either orally or in writing?

Defense Counsel: That's right, your Honor.

The government subsequently submitted a statement of the

offense conduct to the U.S. Probation Department, and Probation

included it in the presentence report (PSR) with some editing.

The statement vividly describes Davis's history of "pimping" --

providing and withholding drugs and using violence to force young,

drug-addicted women into prostitution and then taking the

proceeds. In addition to describing Davis's conduct in 2015 with

A.Z., T.B., and C.D., the statement described his pimping of (1)

A.O., the victim in to-be-dismissed Counts Five and Six, in 2001;

(2) N.S., the minor victim in to-be-dismissed Count Seven, in 2003;

(3) C.G., an "unnamed victim/witness," in 2015; and (4) J.A., whom

Davis began pimping in 2013, and who was a witness to the counts

involving C.D. The PSR also included this statement: "The victims

in this instance are the women who were prostituted by the

- 5 -
defendant. Victim letters have been sent. Any victim impact

letters received will be forwarded to the [c]ourt and the parties."

Probation calculated Davis's TOL as 35 -- one level

higher than specified in the plea agreement -- because it used a

larger number of victims. Rather than counting only A.Z., T.B.,

and C.D. (charged victims) as outlined in the plea agreement,

Probation also counted C.G. and J.A. (victims who were not charged

in the indictment).2 Probation further added two points to Davis's

criminal history score because he was on supervised release when

2The sentencing guidelines create specific rules for grouping
sex trafficking offenses. Pursuant to U.S.S.G. § 2G1.1(d)(1), the
count grouping principles in § 3D1.4 "shall be applied as if the
promoting of a commercial sex act or prohibited conduct in respect
to each victim had been contained in a separate count of
conviction." The special instruction to subsection (d)(1) further
provides:

[E]ach person transported, persuaded, induced, enticed,
or coerced to engage in . . . a commercial sex act . . .
is to be treated as a separate victim. Consequently,
multiple counts involving more than one victim are not
to be grouped together under §3D1.2 (Groups of Closely
Related Counts). In addition, subsection (d)(1) directs
that if the relevant conduct of an offense of conviction
includes the promoting of a commercial sex act . . . in
respect to more than one victim, whether specifically
cited in the count of conviction, each such victim shall
be treated as if contained in a separate count of
conviction.

§ 2G1.1, App. Note 5 (emphasis added). Pursuant to the guidelines,
then, Probation treated A.Z., T.B., C.D., C.G., and J.A., as if
they each had been covered by a separate count, even though C.G.
and J.A. had never been included as charged victims in the
indictment.

- 6 -
he committed conduct involving J.A. His extensive criminal history

included convictions for assaults of A.O. and N.S. (victims in the

to-be-dismissed counts). Probation calculated a CHC of VI, which,

when combined with the TOL of 35, yielded a guideline sentencing

range of 292 to 365 months.

The government did not submit any objections to the PSR,

but Davis did. Of relevance to this appeal, he objected to: (1)

including information regarding A.O. and N.S. because he denied

the allegations, and the government had agreed to dismiss the

counts regarding those women; (2) including information regarding

C.G. and J.A. because he had not been charged with or admitted to

this conduct, and because "[t]he parties have agreed in the plea

agreement that [J.A. and C.G. are] not [] victim[s] for purposes

of calculating the guidelines"; (3) Probation's use of C.G. and

J.A. in calculating his TOL; and (4) Probation's CHC calculation,

particularly the addition of two points based on his conduct

involving J.A.

In his sentencing memorandum, Davis recommended a

sentence of 180 months and argued that his sentence should reflect

only the conduct to which he had pleaded guilty -- "the trafficking

of three adult women [A.Z., T.B., and C.D.] in 2015." He argued

that the court was precluded from considering additional conduct

"pursuant to the guidelines calculation agreed[] to by the

government." Although noting his "concerns," based on the

- 7 -
statement of offense conduct submitted to Probation, that the

government "will not honor the terms of the plea agreement where

they agreed to a guideline calculation that includes only the three

victims to which [he] pled guilty," he "assum[ed] that the

government will join him in th[e] argument[] that there are only

three victims of the offense and that the guideline calculation

set forth in the plea agreement i[s] the correct one."

Nonetheless, he enclosed with his sentencing memorandum a letter

he had sent the government "reminding them of their obligations

pursuant to the plea agreement." In the letter, defense counsel

claimed that the government's submission of information concerning

A.O., N.S., C.G., and J.A. to Probation had "[e]ffected an end-

run around the plea agreement," and "request[ed] that the

government object to the PSR, insofar as it uses [conduct involving

A.O., N.S., C.G., and J.A.] to arrive at a different guidelines

calculation [than the plea agreement], and refrain from making

argument regarding those alleged victims at sentencing."

In its sentencing memorandum, the government recommended

a "severe sentence" of 240 months of incarceration based on Davis's

"conduct in exploiting the vulnerabilities of numerous young women

through psychological manipulation, force, and fear to prostitute

themselves for his sole benefit," as well as his "lifetime spent

violating the law." Pointing to the facts "set forth in detail in

the PSR" and Davis's seeming self-centeredness and lack of

- 8 -
remorse,3 the government characterized him as "a dangerous predator

with no conscience." The government highlighted his state

convictions for assaulting A.O. and N.S., and noted, "[a]lthough

the counts involving both of these victims will be dismissed

pursuant to the plea agreement, the fact that he pled guilty [to

these assaults] belies his incredible claim that he is the actual

victim in this case." The government further noted that it

"expects the [c]ourt [at sentencing] will hear from a few of the

women [Davis] victimized. Their stories . . . will further

support the government's sentencing recommendation." Finally, the

government contended that "[t]he nature and circumstances of

[Davis]'s crimes simply do not warrant the leniency [he] is

requesting."

C. Sentencing Hearing

At the sentencing hearing, the district court accepted

"the binding plea agreement [that] puts the sentencing range at

between 180 and 240 months." Noting that the government had not

responded to Davis's objections to the PSR's guideline

calculation, the court speculated that the government may not

"care" about those calculations. The government responded:

No, your Honor, and it's our position, with the
agreed-upon range [in the plea agreement], it really

3In its sentencing memorandum and at sentencing, the
government referred to post-arrest statements and incidents
allegedly demonstrating Davis's lack of remorse and sense of
personal aggrievement that are not relevant to the present appeal.

- 9 -
 wasn't based on a [g]uideline range at the time. There
were some representations in the plea agreement as to
what we expected the offense level to be, and the
government, based on what it knew at the time and how it
viewed the counts that were charged, those
representations are still true. We believe then
Probation calculated it differently based on their view
of the [g]uidelines and the facts, but it doesn't matter
to the sentencing[.]

No. 1:16-cr-10133-PBS, Dkt. # 155, at *3-4 (emphasis added). The

district court noted that the government was "dismissing out two

of the victims" mentioned in the PSR and stated its intention to

"basically go along with the plea agreement" regarding the

guideline calculations. Therefore, the court accepted an offense

level of 34 and a CHC of IV, yielding a guideline sentencing range

of 210 to 262 months, substantially overlapping with the plea

agreement's recommended range of 180 to 240 months.

Turning to victim statements, the court asked, "which of

the three victims are we hearing from? Is it TB, AZ, and CD?"

That is, the court inquired as to whether it would be hearing from

the charged victims in the non-dismissed counts. The government

then described several written statements it would be presenting,

including a statement from a woman "who is not charged in the

indictment." The judge stated that she had not yet received any

statements and confirmed that defense counsel also had not yet

seen them. Defense counsel interjected that she was "not entirely

clear on who [will be] speaking," and the following colloquy

ensued:

- 10 -
 Defense Counsel: I've heard that there's one person
who's speaking for CD, who is a victim of one of the
counts that Mr. Davis pled guilty to. But to the extent
that the government wants to submit statements of other
people besides the three victims --

Court: Well, that's what got my concern up as to who
was speaking. Let's have the ones that are the charged
victims first, and then I'll address the other one.

The government presented statements by two women who

were victims in the non-dismissed counts -- T.B. and C.D.4 Both

statements described, in forceful and sometimes profane terms, the

emotional toll of Davis's crimes and his predatory nature. In her

statement, T.B. stated, "I would have never done this to myself.

I would have never crossed that line [into prostitution], but you

dragged me over it."

The government then expressed its intention to present

a statement by C.G., "who was not a charged victim or named victim

in the indictment." Defense counsel objected: "I don't think she

meets the definition of a crime victim under the [Crime Victims'

Rights Act, 18 U.S.C. § 3771]. Pursuant to the plea agreement,

the [g]uidelines calculation only contemplates . . . three groups

representing three victims." The court overruled the objection

but noted that C.G.'s statement "won't affect the [guideline]

calculations."

4 C.D. addressed the court, but T.B. was not present in the
courtroom and her statement was read by a victim advocate. There
was no statement by the third charged victim, A.Z., because she
had died of a drug overdose.

- 11 -
 In her brief statement, C.G. alleged that Davis had

initially posed as a drug dealer when he met her and "let[] the

other girl that was there tell me what the deal really was, because

the entire time you were a coward." She also recalled Davis

booking hotels with his autistic son to deflect suspicion, and she

opined that "any vulnerable population to you is just fair game,

whether it's an addict or a disabled child that's your own."

Lastly, the government presented a written statement by

A.O. Defense counsel objected "for the same reasons" stated in

her objection to the statement of C.G. The court overruled the

objection, and the government provided the statement to the court

and to defense counsel. After a pause for them to read it, the

court indicated that it had read the statement and asked defense

counsel if she had done so. Defense counsel replied that she had

"skimmed it" and that she again objected to its inclusion in the

record: "These charges [relating to A.O.] were dismissed by

agreement by the government, and yet . . . they get to put all

this in front of the [c]ourt, these kind of --[.]" Before defense

counsel could finish her statement, the court interjected to again

overrule the objection. A.O.'s statement forcefully recounted the

emotional toll of being "pulled into a life of prostitution" by

Davis and described his brutal assault of her -- for which he was

previously convicted -- as well as his attempts to "find [her] and

get [her] back" after she escaped his control.

- 12 -
 The prosecutor began her sentencing argument by "asking

that the [c]ourt impose a 20-year sentence" -- 240 months (the top

of the agreed-upon sentencing range) -- because "[f]ifteen years,

the mandatory minimum, is just simply not enough to reflect what

this defendant has done to so many people over the course of 15

years." She rehearsed his criminal history, his alleged lack of

remorse, his use of physical force to conduct his pimping, and his

purported nature as a "predator" who sought out "the most

vulnerable women he could find." She again referred to the

appropriateness of a twenty-year sentence. In concluding she said,

"I'm asking you to sentence him to twenty years, which is every

single day that he deserves."

Defense counsel advocated for the mandatory minimum

sentence of fifteen years -- 180 months -- based on Davis's

difficult background and a contention that the victims "were

damaged individuals before they ever met" him. She contrasted his

crimes with cases "involv[ing] minors" and concluded, "for

somebody like Mr. Davis who's been convicted of trafficking three

adult women [] basically over [] weekend trips in 2015, I think 15

years is an appropriate sentence that is consistent with what other

defendants convicted of similar crimes receive for sentences."

Following Davis's allocution, in which he expressed

great remorse, the court began its consideration of the sentence

by reviewing the sentencing factors prescribed by 18 U.S.C.

- 13 -
§ 3553(a). The court highlighted the nature of the offense: "As

the victims' statements indicate, this is an extremely serious

offense because it involves human trafficking of vulnerable women

who are addicted to heroin." The court was especially struck by

Davis's "persistent" use of violence, "a level of violence that I

don't remember in the very few [human trafficking cases] that I've

had." The court also noted that "the statements of the young women

are so different really . . . but each of them suffered greatly at

your hands." After considering Davis's statements of remorse in

his allocution and his difficult background, the court imposed a

sentence of 216 months, because his crimes "merit above the

mandatory minimum." This timely appeal followed.

II.

A. Breach of Plea Agreement

Davis contends that the government breached the plea

agreement when it "broke its promise . . . to advocate for a

guideline calculation that included only three victims."

Specifically, Davis argues that the government breached the

agreement by (1) including facts pertaining to A.O., N.S., C.G.,

and J.A. (again, victims in to-be-dismissed counts and victims who

were never included in charged counts) in the statement of offense

conduct it sent to Probation; (2) not objecting to the PSR's

guideline calculations; (3) not addressing the sentencing

guidelines in its sentencing memorandum and instead emphasizing

- 14 -
the number of women Davis had victimized; (4) "begrudgingly"

advocating for the guideline calculation in the plea agreement at

the sentencing hearing; and (5) presenting the statements by C.G.

and A.O.

1. Appellate Waiver

As a threshold matter, we must determine whether the

appellate waiver in the plea agreement bars Davis's appeal as to

his breach claim. On its face, the appellate waiver bars his

appeal because he was sentenced within the range specified. Davis

maintains, however, that his breach claim falls within the waiver

exemption for a claim that the government "[1] engaged in

misconduct [2] that entitles [Davis] to relief." We agree that

Davis's breach claim falls within the plain language of the

exemption. See United States v. Morales-Arroyo, 854 F.3d 118, 120

(1st Cir. 2017) (applying an appellate waiver based on its plain

language and noting that "[w]e interpret plea agreements under

basic contract principles"). Davis's claim that the government

deliberately breached the plea agreement is a claim of

"misconduct." See United States v. Atwood, 963 F.2d 476, 478 (1st

Cir. 1992) ("[T]he appeal zeroes in on alleged prosecutorial

misconduct, appellant claiming that the government breached a

material term of a binding plea agreement."). If the government

did in fact engage in misconduct by breaching the plea agreement,

Davis would also likely be "entitle[d] to relief." See United

- 15 -
States v. Irizarry-Rosario, 903 F.3d 151, 154 (1st Cir. 2018),

cert. denied, 139 S. Ct. 1201 (2019) ("[T]he government must keep

its promises or the defendant must be released from the bargain."

(quoting United States v. Kurkculer, 918 F.2d 295, 297 (1st Cir.

1990)). Thus, we will proceed to consider Davis's breach claim on

the merits.

2. Standard of Review

We review de novo preserved claims that the government

breached a plea agreement. United States v. Almonte-Nuñez, 771

F.3d 84, 89 (1st Cir. 2014). However, when a defendant fails to

object to the alleged breach "at the sentencing hearing, [we]

review[] for plain error." United States v. Gonczy, 357 F.3d 50,

52 (1st Cir. 2004) (emphasis added). The government rightly

concedes that Davis preserved his contention that the government

breached the plea agreement by presenting statements from C.G. and

A.O. at the sentencing hearing. Davis clearly raised this issue

before the district court.

We agree with the government, however, that Davis did

not preserve the other aspects of his breach claim. He failed to

object at the sentencing hearing to any of the government's pre-

hearing conduct, that is, the government's submission of certain

information to Probation, its failure to object to the PSR, and

its purported failure to focus on the parties' agreed-upon

guideline calculations in its sentencing memorandum. Davis's

- 16 -
failure to properly raise these issues with the court at sentencing

engenders plain error review. See United States v. Saxena, 229

F.3d 1, 5 (1st Cir. 2000) ("When a defendant has knowledge of

conduct ostensibly amounting to a breach of a plea agreement, yet

does not bring that breach to the attention of the sentencing

court, we review only for plain error.").

Although Davis raised concerns about a potential breach

of the plea agreement in his sentencing memorandum, he did not

raise these concerns at the subsequent hearing. The point of a

timely objection is to bring a "live" issue to the district court's

attention at a time when the court can effectively address any

error. See Gonczy, 357 F.3d at 52; see generally Lee v. Kemna,

534 U.S. 362, 378 (2002) ("[A]n objection which is ample and timely

to bring the alleged federal error to the attention of the trial

court and enable it to take appropriate corrective action is

. . . sufficient to preserve the claim for review." (emphasis

added) (quoting Osborne v. Ohio, 495 U.S. 103, 125 (1990)).

Davis's statements in his sentencing memorandum did not accomplish

such notice. Rather, Davis paired his expression of conditional

concern with an expressed assumption that the government would

ultimately hew to the plea agreement when it mattered. In the

absence of any objection by Davis at the sentencing hearing, the

district court could reasonably have concluded that his concerns

had been alleviated. This is precisely the scenario in which we

- 17 -
apply plain error review, i.e., where the complaining party does

not object at the sentencing hearing to an asserted deviation from

the plea agreement. See Puckett v. United States, 556 U.S. 129,

140 (2009); United States v. Oppenheimer-Torres, 806 F.3d 1, 4

(1st Cir. 2015). Accordingly, we review for plain error Davis's

contention that the government breached the plea agreement through

its pre-hearing conduct.5

We also apply plain error review to Davis's contention

that the government breached the plea agreement by only

"begrudgingly" advocating for the plea agreement's guideline

calculation at the sentencing hearing. Davis made no objection to

the government's sentencing arguments before the district court.

3. De Novo Review of the Preserved Claim

Davis contends that the government breached the plea

agreement by "presenting" the statements by C.G. and A.O. -- a

victim who was not included in any charged count and a victim in

a dismissed count, respectively -- after it agreed that there are

5
Davis's reliance on Gonczy is inapposite. In Gonczy, the
defendant clearly raised an objection at the sentencing hearing to
specific actions by the government purportedly effecting a breach
of the plea agreement. See 357 F.3d at 52 ("The government's
argument [for plain error review] fails not only because Gonczy's
counsel did object, but because the record shows that the district
court was aware of both the objection and the underlying reasons."
(emphasis added)). We reject Davis's suggestion that he preserved
his objection to the government's pre-hearing conduct by objecting
to different conduct at the hearing.

- 18 -
only three victims for purposes of count grouping, A.Z., T.B., and

C.D.

We have recognized a tension between the general

principle that the government has a duty to provide to the court

reliable information relevant to sentencing and the fact that

"certain factual 'omission[s], helpful to the defendant,' may be

'an implicit part of the bargain' in a plea agreement." United

States v. Miranda-Martinez, 790 F.3d 270, 274 (1st Cir. 2015)

(alteration in original) (quoting United States v. Yeje-Cabrera,

430 F.3d 1, 28 (1st Cir. 2005)); see 18 U.S.C. § 3661 ("No

limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider

for the purpose of imposing an appropriate sentence."); U.S.S.G.

§ 1B1.4 (same); Almonte-Nuñez, 771 F.3d at 90 ("We repeatedly have

emphasized that prosecutors have a . . . solemn obligation to

provide relevant information to the sentencing court and that a

plea agreement may not abridge that obligation."); Saxena, 229

F.3d at 6 ("In a nutshell, the government has an unswerving duty

to bring all facts relevant to sentencing to the judge's

attention.").

However, that tension is not present in this case. We

disagree with Davis's contention that the count grouping language

in the plea agreement constituted a promise by the government not

- 19 -
to rely on dismissed or uncharged conduct for any other purpose.

"[I]nterpret[ing] [the] plea agreement as a whole and striv[ing]

to give effect to all of its terms," Almonte-Nuñez, 771 F.3d at

89, the agreement expressly "does not limit the information that

the prosecutor can convey." Miranda-Martinez, 790 F.3d at 275.

To the contrary, the agreement unambiguously reserves the

government's right "to provide the Court and the U.S. Probation

Office with accurate and complete information regarding this

case." This broad reservation is not nullified by the specific

language earlier in the plea agreement concerning the parties'

agreement that "there are a total of three groups" for purposes of

count grouping. C.G. and A.O.'s statements were unmistakably

relevant to the district court's consideration of Davis's

background, character, and conduct for imposing an appropriate

sentence, see 18 U.S.C. § 3661, and Davis does not suggest that

the statements lacked "sufficient indicia of reliability to

support [their] probable accuracy," U.S.S.G. § 6A1.3(a).

The government's actions did not deny Davis the benefit

of the plea agreement. As he acknowledges, his benefit of the

bargain was the government's agreement to drop certain charges,

not pursue other charges, and advocate for a sentence of no more

than 240 months. See Appellant's Br. at 18 (stating that the plea

agreement "hinged on the court's acceptance of the disposition

contained in . . . the agreement, i.e., a sentence of incarceration

- 20 -
between 180 and 240 months" (emphasis added)). That is what Davis

bargained for, and that is what he got. The government dropped

certain charges, declined to pursue other charges, and repeatedly

argued for a 240-month term of imprisonment, a sentence consistent

with the agreed-upon guideline calculation using three victims.

The government did not violate the letter of the plea agreement by

presenting the relevant statements of C.G. and A.O.

Nor did the presentation of the statements effect an

"end-run" around the promises in the plea agreement. See United

States v. Cruz-Vázquez, 841 F.3d 546, 548 (1st Cir. 2016) ("We

prohibit not only explicit repudiation of the government's

assurances but also end-runs around those assurances."). Rather,

the presentation of C.G. and A.O.'s statements was consistent with

the government's agreed-to ability to recommend a 240-month

sentence. There is a significant discrepancy -- 60 months --

between the top and bottom of the sentencing range that the parties

agreed would be appropriate. The government could support its

"severe" sentencing recommendation and demonstrate that Davis's

recommendation was too lenient by presenting statements of other

women whom Davis had victimized. See, e.g., Almonte-Nuñez, 771

F.3d at 91 ("The [plea] [a]greement allowed the prosecutor to seek

the upper end of the [guideline sentencing range] contemplated by

the [a]greement, and the [prosecutor] was within fair territory in

emphasizing facts that made a sentence at the low end of that GSR

- 21 -
inappropriate."); see also Irizarry-Rosario, 903 F.3d at 155;

United States v. Ubiles-Rosario, 867 F.3d 277, 287 (1st Cir. 2017).

We therefore conclude that the government did not breach the plea

agreement by presenting C.G. and A.O.'s statements at the

sentencing hearing.6

4. Plain Error Review of the Unpreserved Claims

To establish plain error, an appellant must show "(1)

that an error occurred (2) which was clear or obvious and which

not only (3) affected [his] substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Almonte-Nuñez, 771 F.3d at 89 (quoting

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). We

conclude that Davis has failed to meet this daunting standard.

To recap, Davis claims that the government breached the

plea agreement by (1) including facts pertaining to A.O., N.S.,

6 Davis's reliance on United States v. Boatner, 966 F.2d 1575
(11th Cir. 1992), is misplaced. In Boatner, the parties
specifically stipulated in the plea agreement that "two ounces of
cocaine would be the only [drug] quantity considered for sentencing
purposes." 966 F.2d at 1577. The government then submitted
information to Probation demonstrating that the defendant had been
involved with three kilograms of cocaine. Id. The Eleventh
Circuit determined that the government had breached the plea
agreement based on an explicit provision restricting the evidence
on drug quantity. Here, unlike in Boatner, the government reserved
the right to present relevant information about Davis's conduct.
The factual limitation in this plea agreement -- that there are
three victims -- also was stated only in reference to count
grouping pursuant to U.S.S.G. § 3D1.4.

- 22 -
C.G., and J.A. (once again, victims in to-be-dismissed counts and

victims who were never included in charged counts) in the statement

of offense conduct it sent to Probation; (2) not objecting to the

PSR's guideline calculations; (3) not addressing the sentencing

guidelines in its sentencing memorandum and instead emphasizing

the number of women Davis had victimized; and (4) "begrudgingly"

advocating for the guideline calculation in the plea agreement at

the sentencing hearing.

We cannot conclude that the government's provision of

certain information to Probation and its failure to object to the

PSR's use of that information constituted a clear or obvious breach

of the plea agreement. As explained above, the plea agreement

provided Davis with multiple benefits, but the government

explicitly reserved the right to present relevant sentencing

information -- there was no promise that the government would

"sugarcoat the facts" concerning his background, character, and

conduct. See id. at 91.

Nor can we conclude that the government "clearly or

obviously" breached the plea agreement with its sentencing

memorandum or argument. See Puckett, 556 U.S. at 143. To support

his claim of error, Davis relies on cases that are readily

distinguishable. In Gonczy, we determined that the government had

breached the plea agreement where the prosecutor "pa[id] lip

service" to the agreed-upon recommended sentence but otherwise

- 23 -
argued for a higher sentence. 357 F.3d at 54. In this case, the

government repeatedly recommended -- in its sentencing memorandum

and at the sentencing hearing -- the "severe" 240 month sentence

it was entitled to recommend under the terms of the plea agreement

and never argued for a different sentence. Cf. United States v.

Canada, 960 F.2d 263, 269 (1st Cir. 1992) (finding a breach where

the prosecutor "failed affirmatively to recommend 36 months, as

promised, and . . . went on to emphasize [the defendant]'s

supervisory role in the offense and then to urge the judge to

impose a 'lengthy period of incarceration' and to send 'a very

strong message'").

Further, the government's actions and advocacy were not

impermissibly equivocal, apologetic, or begrudging. See United

States v. Velez Carrero, 77 F.3d 11, 11-12 (1st Cir. 1996); Canada,

960 F.2d at 269. We acknowledge that the government's initial

statement in defense of the guideline calculation in the plea

agreement -- "[t]here were some representations in the plea

agreement . . . based on what [the government] knew at the time"

-- could be seen as less than full-throated. However, the

government directly followed by stating that the representations

in the plea agreement "are still true." More fundamentally, the

government's "overall conduct" -- its ultimate support of the plea

agreement's guideline calculations and the recommended sentence -

- 24 -
- was, at the very least, "reasonably consistent" with its promises

in the plea agreement. Gonczy, 357 F.3d at 54.

B. Inadequate Notice Regarding Victim Statements

Davis also contends that he was not provided with

adequate notice concerning the victim statements presented at the

sentencing hearing and was therefore deprived of his "due process

right to respond to and challenge the factual information [that

the statements] contained." Davis cannot dispute that he received

notice that victim statements might be presented at the sentencing

hearing. Indeed, at the change of plea hearing, defense counsel

acknowledged that such statements would be presented. We thus

focus on Davis's claim that he was provided inadequate notice

regarding what he contends are new facts introduced through the

victim statements at sentencing.7

Davis concedes that the appellate waiver bars this

unpreserved claim unless enforcing the waiver "would work a

miscarriage of justice." United States v. Teeter, 257 F.3d 14, 25

(1st Cir. 2001).8 In Teeter, we explained that the miscarriage of

7To the extent Davis suggests that he was unfairly harmed by
the statements' length or inflammatory nature, he has failed to
adequately develop this argument. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
8The relationship between the "miscarriage of justice"
inquiry under Teeter and plain error review is somewhat murky.
See United States v. Cabrera-Rivera, 893 F.3d 14, 30 & n.9 (1st
Cir. 2018). However, despite recognizing that miscarriage of
justice and plain error review may be "functional equivalents," we

- 25 -
justice exception to enforcement of an otherwise valid appellate

waiver should be "applied sparingly and without undue generosity"

after considering factors such as "the clarity of the error, its

gravity, its character[,] . . . 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."

Id. at 26.

We enforce the appellate waiver in this case for two

reasons. First, it is not clear there was any error. Even

assuming, without deciding, that the victim statements introduced

new factual information, there is no indication that the

information was "materially relied on" by the district court in

determining the sentence. See United States v. Millán-Isaac, 749

F.3d 57, 70 (1st Cir. 2014). The court's focus was on Davis's

violent behavior, which was well-documented in the sentencing

record outside the victim statements. Second, as in United States

v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989), defense counsel

"never moved for a continuance to prepare for cross-examination or

to muster additional evidence." Id. at 47; see also id. ("It is

have followed a two-step approach of first determining whether
enforcing an appellate waiver would constitute a miscarriage of
justice and then reviewing the claim of error on the merits under
the applicable standard of review if we have determined that the
appellate waiver should be disregarded. Id. Because, as we
explain, there is no miscarriage of justice in enforcing the
appellate waiver as to Davis's notice claim, we do not consider
whether his claim survives plain error review.

- 26 -
. . . incumbent upon a party [claiming unfair surprise] to ask

explicitly that the court grant the time needed to regroup, or

waive the point.").9 Accordingly, the appellate waiver in the plea

agreement bars his appeal on the notice issue.

III.

For the foregoing reasons, we conclude that Davis's

claim that the government breached the plea agreement fails, and

that his claim that he was provided with inadequate notice

regarding victim statements presented at the sentencing hearing is

barred by the appellate waiver in the plea agreement. We therefore

affirm the district court's sentencing judgment.

So ordered.

9
Defense counsel did not lack "an adequate opportunity to
register an effective objection." See United States v.
Toribio-Lugo, 376 F.3d 33, 40 (1st Cir. 2004). To provide one
example of a missed opportunity, counsel could have raised the
notice issue or asked for a continuance after the court and defense
counsel took time to read A.O.'s written statement.

- 27 -