United States Court of Appeals 

For the First Circuit 

No. 15-1185 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JUAN ÁNGEL MORALES-ARROYO, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Carmen Consuelo Cerezo, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Thompson and Barron, Circuit Judges. 

Merritt Schnipper on brief for appellant. 

Nelson Pérez-Sosa, Assistant United States Attorney, Chief, 

Appellate Division, Mainon A. Schwartz, Assistant United States 

Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, 

on brief for appellee. 

April 19, 2017 
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HOWARD, Chief Judge. Juan Ángel Morales-Arroyo 

challenges the reasonableness of a 132-month prison sentence 

imposed for unlawful possession of firearms in furtherance of a 

drug trafficking crime and for possession of crack cocaine with 

intent to distribute. He contends that the waiver-of-appeal 

provision in his plea agreement does not bar this appeal. After 

careful consideration, however, we conclude that it does and 

dismiss Morales's appeal. 

I. 

 Morales pleaded guilty, pursuant to a written plea 

agreement, to unlawful possession of three AK-47s in furtherance 

of a drug trafficking crime and possession of crack cocaine with 

intent to distribute in violation of 18 U.S.C. § 924(c)(1)(A) and 

21 U.S.C. § 841(a)(1), respectively. 

 Of particular importance here, the plea agreement 

included a provision titled "Waiver of Appeal." This provision 

stated that Morales "knowingly and voluntarily waives the right to 

appeal the judgment and sentence in this case, provided that [he] 

is sentenced in accordance with the terms and conditions set forth 

in the Sentence Recommendation provisions of this Plea Agreement." 

Under the plea agreement's "Sentence Recommendation" 

section, the parties stipulated that, "[i]n consideration of the 

relevant factors enumerated in 18 U.S.C. § 3553(a)," Morales would 
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recommend "a sentence of 96 months of imprisonment and the United 

States [would] recommend to the Court a sentence of 144 moths [sic] 

of imprisonment."

The district court accepted Morales's plea and sentenced 

him to 132 months in prison. 

II. 

 As a threshold matter, we must determine whether the 

waiver-of-appeal provision is enforceable under the circumstances 

of this case. See United States v. Acosta-Roman, 549 F.3d 1, 3 

(1st Cir. 2008). "[U]nder ordinary circumstances, a knowing, 

voluntary waiver of the right to appeal from a sentence, contained 

in a plea agreement, ought to be enforced." United States v. 

Teeter, 257 F.3d 14, 23 (1st Cir. 2001). 

Typically, in determining whether a waiver is valid, we 

look to confirm that the plea agreement contains a clear statement 

elucidating the waiver and delineating its scope, and we examine 

the plea hearing to ascertain whether the defendant was 

specifically questioned about his understanding of the waiver and 

adequately informed of its ramifications. United States v. 

Chandler, 534 F.3d 45, 49 (1st Cir. 2008). On the record before 

us, Morales's waiver of appeal survives such scrutiny. 

 Morales, however, does not challenge the waiver 

provision's validity but rather its scope: he asserts that, under 
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its plain language, the waiver provision does not apply to this 

appeal. In the alternative, Morales argues that -- even if the 

waiver provision is applicable -- enforcing it "would work a 

miscarriage of justice." We take these claims in turn. 

A. Plain Language 

 We interpret plea agreements under basic contract 

principles and construe ambiguities in favor of allowing the appeal 

to proceed. United States v. Okoye, 731 F.3d 46, 49 (1st Cir. 

2013). Mindful of this fact, Morales urges us to find the waiverof-appeal provision ambiguous insofar as it refers to the "Sentence 

Recommendation provisions." According to Morales, ambiguity stems 

from the use of the plural "provisions" because the plea agreement 

contains only one section titled "Sentence Recommendation." In 

other words, Morales pins his hopes on the proposition that the 

waiver provision is ambiguous as to whether it excludes from its 

scope not only the judge's failure to impose a sentence within the 

range proposed by the parties but also errors based on the 

sentencing court's failure to comply with applicable "provisions" 

of the federal sentencing statutes. 

Morales, however, is "conjuring up an ambiguity where 

none legitimately exists." United States v. Anderson, 921 F.2d 

335, 338 (1st Cir. 1990; see also United States v. BetancourtPérez, 833 F.3d 18, 22–23 (1st Cir. 2016). He waived his right to 
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appeal as long as he received a sentence between 96 and 144 months. 

As Morales's sentence fell well within the range contemplated by 

the plea agreement, the waiver provision applies under its plain 

language. 

B. Miscarriage of Justice 

 A waiver that is made knowingly and voluntarily is 

presumptively enforceable. However, "even if the waiver passes 

muster at [these] first two steps, an appellate court will not 

enforce it if doing so would work a miscarriage of justice." 

United States v. Nguyen, 618 F.3d 72, 74 (1st Cir. 2010). The 

circumstances that could potentially justify such a refusal to 

enforce a waiver are "infinitely variable." Teeter, 257 F.3d at 

25 n.9. Relevant considerations, however, 

include the character, clarity, and gravity of the claim of 

error, its impact on the defendant, any possible prejudice to 

the government that might accompany a refusal to honor the 

waiver, and the extent to which the defendant can fairly be 

said to have acquiesced in the result. 

Nguyen, 618 F.3d at 75. 

 Only sparingly will we refuse to enforce an otherwise 

valid waiver of appeal under the miscarriage of justice exception. 

See, e.g., United States v. Pratt, 533 F.3d 34, 37 (1st Cir. 2008); 

United States v. De-La-Cruz Castro, 299 F.3d 5, 13 (1st Cir. 2002). 

A defendant who, like Morales, seeks to appeal despite having 

knowingly and voluntarily waived that right "must show more than 
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reversible error." Nguyen, 618 F.3d at 75. At a minimum, he must 

show "an increment of error more glaring." Id.; cf. United States 

v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) ("Defendants who appeal 

from sentences following plea agreements always point to 

unanticipated and unwelcome developments. . . . To say that a 

waiver of appeal is effective if and only if the defendant lacks 

grounds for appeal is to say that waivers will not be honored."). 

The errors alleged by Morales cannot "vault the hurdle 

erected by the waiver."1 United States v. Calderon-Pacheco, 564 

F.3d 55, 59 (1st Cir. 2009); see also Sotirion v. United States, 

617 F.3d 27, 38 (1st Cir. 2010) (finding no miscarriage of justice 

despite the sentencing court's miscalculation of the advisory 

guideline range where the sentence fell below the upper-limit 

 1 Morales objects to the procedural reasonableness of his 

sentence. He concedes that he raised no objection below and, 

therefore, review is for plain error. See United States v. DávilaGonzález, 595 F.3d 42, 47 (1st Cir. 2010). Essentially, Morales 

argues that the sentencing court did not adequately explain its 

upward variance and relied on factors already accounted for by the 

Guidelines. Upon review, we conclude that the district court did 

not commit plain error. Even when a non-Guidelines sentence is 

imposed, a sentencing court may rely on a factor already included 

in the calculation of the Guidelines sentencing range as long as 

the court "articulate[s] specifically the reasons that this 

particular defendant's situation is different from the ordinary 

situation covered by the guidelines calculation." United States 

v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006); see also United 

States v. Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010) 

("Where the record permits a reviewing court to identify both a 

discrete aspect of an offender's conduct and a connection between 

that behavior and the aims of sentencing, the sentence is 

sufficiently explained to pass muster under section 3553(c)."). 

The district court did so here. 
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sought by the government); United States v. Edelen, 539 F.3d 83, 

87 (1st Cir. 2008) (finding claims that the sentencing court erred 

in applying official-victim sentencing enhancement and in failing 

to consider sentencing disparity between crack and powder cocaine 

did not constitute a miscarriage of justice); United States v. 

Corso, 549 F.3d 921, 931 (3d Cir. 2008) (finding no miscarriage of 

justice where district court made errors in applying number-ofvictims and abuse-of-trust enhancements). 

Indeed, "far from working a miscarriage of justice, 

[Morales's] plea agreement conferred significant benefits on him." 

Sotirion, 617 F.3d at 38. In exchange for waiving his right to 

appeal, the government agreed to dismiss two other firearmsrelated counts. Morales cannot now renege on his bargain. 

III. 

For the foregoing reasons, Morales's waiver is both 

valid and enforceable and, therefore, our consideration of this 

appeal on the merits is barred. The appeal is dismissed.