Not for Publication in West's Federal Reporter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
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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 agreedupon 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).