United States Court of Appeals 

For the First Circuit 

No. 16-2152 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

SANTOS MARTE-DE LA CRUZ, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Daniel R. Domínguez, U.S. District Judge] 

Before 

Torruella, Thompson, and Kayatta, 

Circuit Judges. 

Robert Herrick and Nicholson Herrick LLP, on brief for 

appellant. 

 Mainon A. Schwartz, Assistant United States Attorney, Rosa 

Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division, on brief for appellee. 

December 4, 2017 
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KAYATTA, Circuit Judge. Pursuant to a plea agreement, 

Santos Marte-de la Cruz pled guilty to attempted illegal reentry 

into the United States following removal subsequent to a conviction 

for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). 

He was sentenced to thirty-three months' imprisonment. He now 

appeals his conviction and sentence on the basis that his prior 

conviction was not an aggravated felony or crime of violence. 

Because Marte-de la Cruz waived his right to appeal as part of his 

plea agreement, we dismiss his appeal. 

I. Background 

We draw the facts from the parties' agreed-upon 

statement, attached to the plea agreement. In January 2016, a 

United States Coast Guard patrol intercepted a vessel travelling 

toward Puerto Rico. Marte-de la Cruz was on board. He identified 

himself as a Dominican Republic national and presented no 

documentation that would permit him to enter the United States or 

remain therein. The authorities subsequently learned that in 2010, 

Marte-de la Cruz had been charged with robbery in the Superior 

Court of San Juan, Puerto Rico, and sentenced to five years' 

imprisonment. Subsequent to that conviction, he was served with 

an order of removal and on September 24, 2014, he was removed from 

the United States. 

On January 13, 2016, a criminal complaint issued against 

Marte-de la Cruz. The same day, counsel was appointed to represent 
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him. On May 2, 2016, following Marte-de la Cruz's waiver of his 

right to an indictment, the United States filed a criminal 

information, charging Marte-de la Cruz with violating 8 U.S.C. 

§ 1326(b)(2), which criminalizes re-entry or attempted re-entry 

into the United States by an individual who was previously removed 

following a conviction for an aggravated felony. The same day, 

Marte-de la Cruz filed a plea agreement.

The plea agreement contained the following provisions: 

First, Marte-de la Cruz agreed to plead guilty to one count of 

attempted illegal reentry following removal subsequent to a 

conviction for an aggravated felony, in violation of 

section 1326(b)(2). Second, the parties agreed to recommend that 

Marte-de la Cruz's total offense level be set at nineteen. They 

arrived at this figure by starting with a base offense level of 

eight, adding sixteen levels for the fact that Marte-de la Cruz 

had been previously removed following a conviction for a crime of 

violence, and subtracting three levels for acceptance of 

responsibility and two more levels for participation in a fasttrack plea program. Third, Marte-de la Cruz agreed "that the facts 

contained in the attached government's version of facts are true 

and correct, and that had the matter proceeded to trial, the United 

States would have proven those facts beyond a reasonable doubt." 

Finally, the agreement stated that Marte-de la Cruz "knowingly and 

voluntarily waive[d] the right to appeal the judgment and sentence 
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in this case, provided that [he was] sentenced in accordance with 

the terms and conditions set forth in the Sentence Recommendation 

provisions of th[e] Plea Agreement." The agreement was signed by 

both Marte-de la Cruz and his attorney, and contained further sworn 

statements from each of them stating that Marte-de la Cruz's 

attorney had discussed the plea agreement with him in Spanish, 

that it had been translated for Marte-de la Cruz, and that Martede la Cruz "ha[d] no doubts as to the contents of the agreement."

At his change-of-plea hearing, Marte-de la Cruz again 

affirmed that the plea agreement and attached document had been 

translated, that his attorney had explained the documents to him, 

and that he understood the terms of the agreement and attached 

document. The government was asked to describe the essential terms 

of the agreement, and stated that the parties had agreed to a base 

offense level of eight and an increase of sixteen levels "because 

the Defendant was previously removed after a conviction for a crime 

of violence," accompanied by reductions for acceptance of 

responsibility and his participation in a fast-track disposition 

program, for a total offense level of nineteen. Marte-de la Cruz's 

attorney was asked if he agreed with the government's 

representations and Marte-de la Cruz himself was asked if the 

government had accurately described the agreed-upon sentencing 

recommendations; both answered in the affirmative. The magistrate 

judge also asked: "are you pleading guilty of your own free will 
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because you are, in fact, guilty?" Again, Marte-de la Cruz 

responded in the affirmative. Later in the hearing, the magistrate 

judge stated: "I want to point out to you that . . . your plea 

agreement[] contain[s] a waiver-of-appeal paragraph, and, in that, 

you are agreeing to waive your right to appeal both the judgment 

and the sentence." He then asked if Marte-de la Cruz "voluntarily 

agree[d] to waive [his] right to appeal both [his] conviction and 

[his] sentence," and Marte-de la Cruz again responded that he was 

aware of this waiver and agreed to it. The magistrate judge 

specifically noted that Marte-de la Cruz had been charged with 

attempting to enter the United States following removal 

"subsequent to a conviction for an aggravated felony" and Martede la Cruz acknowledged that he was pleading guilty to this 

specific offense. The magistrate judge then asked the government 

to state its version of the facts, which included the statement 

that "background checks . . . reveal[] that . . . Marte-de la Cruz 

. . . was arrested and charged for robberies, and, on March 24, 

2010, he was sentenced to five years imprisonment in the Superior 

Court of San Juan, . . . making the crime an aggravated felony 

under the Immigration and Nationality Act." Following this 

statement, the magistrate judge asked whether Marte-de la Cruz 

"agree[d] with and admit[ted] to all of the facts the Prosecutor 

just described." Again, Marte-de la Cruz answered in the 

affirmative. The magistrate judge recommended that the district 
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court accept the plea of guilty and the district court accepted 

the recommendation. 

The matter proceeded to sentencing on August 18, 2016. 

At sentencing, the district court expressed concern about Martede la Cruz's prior conduct because his prior conviction "was not 

only a burglary, but a burglary entering into a house of a lady 

and pointing a knife at her." The district court was troubled 

that Marte-de la Cruz had been permitted to take part in the fasttrack plea program given his prior conduct, but the government 

noted that it was aware of the conduct and Marte-de la Cruz's 

counsel stated "the criminal complaint reflects the fact that the 

government knew about the robbery conviction -- actually, an 

aggravated felony." Following this reassurance, the district 

court sentenced Marte-de la Cruz to thirty-three months' 

imprisonment. It also told Marte-de la Cruz that "[i]n this 

particular case, you agreed that if the Court sentenced you to 

Level 19 you were waiving your right to appeal. And in this case, 

the Court has sentenced you not only to Level 19, but also to the 

lower end of 19, which is what the parties specifically agreed." 

Four days later, Marte-de la Cruz filed a notice of 

appeal from his conviction and sentence. 

II. Discussion 

Marte-de la Cruz's argument on appeal is that his prior 

offense was not an aggravated felony or crime of violence, despite 
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agreement by the parties that it was. Specifically, he argues 

that he was convicted of second-degree burglary, not robbery, which 

he contends is not an aggravated felony or crime of violence. He 

argues that the allegedly erroneous determination that his prior 

conviction was for robbery resulted in two flaws in his conviction 

and sentence. First, if his prior offense was not an aggravated 

felony (and he submits that Puerto Rico burglary is not), then he 

was not guilty of violating 8 U.S.C. § 1326(b)(2), which only 

applies to those removed following a conviction for such a felony. 

Second, if his prior offense was not a crime of violence under the 

relevant portion of the sentencing guidelines (again, he argues 

that Puerto Rico burglary is not such a crime), his offense level 

was inappropriately increased, even if his conviction itself were 

valid.

By its terms, the express appeal waiver contained in 

Marte-de la Cruz's plea agreement clearly applies, a point he does 

not contest. He nonetheless argues that it should not be enforced. 

We disagree. 

Presentence waivers of appellate rights are 

"presumptively valid (if knowing and voluntary)." United States 

v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001). Here, there is no 

doubt that Marte-de la Cruz knew he was waiving his appellate 

rights and did so voluntarily: "[T]he written plea agreement 

contains a clear statement elucidating the waiver and delineating 
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its scope, and . . . the district court inquired specifically at 

the change-of-plea hearing into any waiver of appellate rights." 

Sotirion v. United States, 617 F.3d 27, 33 (1st Cir. 2010) 

(internal quotation marks and alterations omitted). Marte-de la 

Cruz suggests that "[d]efense counsel's rush to get a plea 

agreement signed before he ascertained the nature of Marte-de la 

Cruz's prior conviction casts serious doubt on any suggestion that 

Marte-de la Cruz's appeal waiver was knowing and voluntary" 

(internal quotation marks and alterations omitted). But beyond 

this perfunctory suggestion, he offers no compelling case that 

there was such a rush, let alone facts sufficient to rebut the 

strong presumption, supported by the explicit nature of the waiver 

and the magistrate judge's repeated cautions, that the waiver was 

knowing and voluntary. 

 We nonetheless "retain[] inherent power to relieve the 

defendant of the waiver, albeit on terms that are just to the 

government, where a miscarriage of justice occurs." Teeter, 257 

F.3d at 25–26. We have said that this exception is to be "applied 

sparingly and without undue generosity." United States v. GilQuezada, 445 F.3d 33, 37 (1st Cir. 2006) (quoting Teeter, 257 F.3d 

at 26). It requires "a strong showing of innocence, unfairness, 

or the like." Id. In evaluating whether a miscarriage of justice 

has occurred, "we consider, among other things, the clarity of the 

alleged error, its character and gravity, its impact on the 
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defendant, any possible prejudice to the government, and the extent 

to which the defendant acquiesced in the result." Id. In this 

case, however, it appears unlikely that error occurred at all. 

Marte-de la Cruz's entire case on appeal hinges on his 

contention that "[t]he parties and, at times, the probation officer 

labored under the false impression that Marte-de la Cruz's earlier 

conviction had been for robbery," when in fact, it was for seconddegree burglary. The government's version of the facts, the truth 

of which Marte-de la Cruz expressly agreed to in his plea 

agreement, stated that Marte-de la Cruz's prior conviction was for 

robbery and described this robbery as an aggravated felony. At 

the change-of-plea hearing, the court and the government 

repeatedly described Marte-de la Cruz's prior offense as robbery. 

They even specifically described this robbery as an aggravated 

felony, a characterization which Marte-de la Cruz affirmatively 

agreed was correct when he acknowledged the truth of the 

government's version of the facts. And the presentence report 

(PSR) likewise used the term "robbery" on multiple occasions.

Against all of this, Marte-de la Cruz points to other 

portions of the PSR, most notably one which describes his 

conviction as one for "2nd degree burglary," and the district 

court's use of similar language. However, the same portion of the 

PSR lists the statute of conviction as Article 199 of the Puerto 

Rico Penal Code. Article 199 is the aggravated robbery statute 
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and says nothing about burglary, whatever degree. See 33 L.P.R.A. 

§ 4827. The PSR further states, in describing the facts 

surrounding Marte-de la Cruz's initial conviction, that he had 

"through the use of violence and/or intimidation, t[aken] 

property." This is the language of the Puerto Rico robbery 

statute, not the burglary statute. Compare 33 L.P.R.A. § 4826 

(entitled "Robbery" and reading "Any person who unlawfully takes 

personal property belonging to another in the immediate presence 

of said person and against his/her will by means of force or 

intimidation shall incur a third degree felony") with 33 L.P.R.A. 

§ 4831 (entitled "Burglary" and reading "Any person who enters a 

dwelling, building or other construction or structure . . . with 

the purpose of committing any crime involving unlawful taking or 

a felony shall incur a misdemeanor"). Thus, far from establishing 

that Marte-de la Cruz was convicted of burglary, the record 

actually contains multiple corroborating indications that his 

conviction was for robbery, as the plea agreement and subsequent 

court proceedings assumed. It appears likely that there was no 

error at all. In any event, there was certainly no clear and grave 

error sufficient to constitute a miscarriage of justice. 

III. Conclusion 

Marte-de la Cruz agreed to waive his right to appeal his 

conviction and sentence in this case, assuming he received a 

certain sentence. He received that sentence, triggering the 
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waiver. The waiver was made knowingly and voluntarily, and thus 

is valid. And he has given us no reason to conclude that enforcing 

the waiver would work a miscarriage of justice; indeed, the only 

error of which he complains was likely not error at all. 

Accordingly, the waiver bars this appeal and the appeal is 

dismissed.