Not for Publication in West's Federal Reporter 

United States Court of Appeals

For the First Circuit 

Nos. 15-1943 

 15-1944 

UNITED STATES OF AMERICA, 

Appellee, 

 v. 

RAMÓN MOLINA-QUINTERO, 

 Defendant, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Juan M. Pérez-Giménez, U.S. District Judge] 

Before 

Lynch, Lipez, and Thompson, 

Circuit Judges. 

 Paul M. Glickman and Glickman Turley LLP on brief for 

appellant. 

Rosa Emilia Rodríguez–Vélez, United States Attorney, Mariana 

E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, and Mainon A. Schwartz, Assistant United 

States Attorney, on brief for appellee. 

March 20, 2017 

.
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THOMPSON, Circuit Judge. 

PREFACE 

Ramón Molina-Quintero ("Molina") believes the government 

breached a plea agreement he had entered into with the government 

and so says he should get resentenced by a different district 

judge. Spying no plain error, we affirm. 

BACKGROUND1

Plea Agreement

Molina pleaded guilty to drug and firearm charges under 

a nonbinding plea agreement that resolved two indictments filed 

against him. After working through some adjustments, the agreement 

arrived at a total offense level 33 for the two drug charges. The 

agreement did not specify either his criminal history score or 

criminal history category, though it did forecast possible 

sentencing ranges for the drug charges based on criminal history 

categories I (135-168), II (151-188), and III (168-210).2 For the 

drug charges, the parties promised to jointly recommend a sentence 

at "the lower end of the applicable guideline range for a total 

 1 As per usual, we draw the background facts from the plea 

agreement, the unobjected-to parts of the presentence report, and 

the transcripts from the relevant court hearings. See, e.g., 

United States v. Romero-Galindez, 782 F.3d 63, 65 n.1 (1st Cir. 

2015). 

2 These ranges were for the drug charges together, because 

they were grouped for sentencing purposes, as required by the 

guidelines. See U.S.S.G. § 3D1.2(d). 
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offense level 33." And for the firearm charge, the parties 

promised to jointly recommend a 60-month term, to run consecutively 

to whatever sentence the judge imposed on the drug charges. "Any 

recommendation other than what is stated herein," the agreement 

added, "constitute[s] a breach of the plea agreement." 

Presentence Report 

Probation also found that Molina's total offense level 

was 33, which included a 2-level enhancement because the drug 

trafficking occurred near a protected location. And probation 

calculated his criminal-history category as II because of his 1994 

conviction for carrying a weapon without a license. All of this 

produced a proposed sentencing range of 151-188 months. 

Sentence 

At sentencing, Molina's lawyer asked the judge to 

(a) jettison the protected-location enhancement because the plea 

agreement "did not contemplate" adding "points" for that 

enhancement; (b) lower his offense level by 2 levels based on 

Amendment 782 to the sentencing guidelines;3 and (c) reduce his 

criminal-history score because of the 1994 conviction's supposed 

remoteness. The judge asked the prosecutor for her response. And 

 3 That amendment retroactively lowered by 2 levels the base 

offense levels for many drug crimes. See United States v. 

Alejandro-Montañez, 778 F.3d 352, 362 (1st Cir. 2015). 
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she started off with some background about the plea negotiations, 

saying that "we lowered the amount of drugs" attributed to him to 

reach an agreement. She conceded that the plea agreement did not 

mention the possibility of a protected-location enhancement. 

Noting how the plea agreement contained a stipulated total offense 

level of 33, she also said — wrongly, it turns out, without being 

contradicted by defense counsel then and there — that "the parties 

agreed that each party was going to argue for a sentence within 

the range." But, she quickly added, "the government at this time 

is standing by what was recommended in the plea agreement" and so 

would not push for a protected-location enhancement. The 

government would not oppose the 2-level reduction under Amendment 

782, she intimated, even though that would result in a total 

offense level lower than the one spelled out in the plea agreement. 

But she argued against Molina's bid to have the judge reduce his 

criminal-history category, saying he should "be considered a 

criminal history category II." 

And now we come to the money quote, as Molina sees it. 

After saying all this to the judge, the prosecutor then said that 

Molina "should be sentenced to the higher end of the applicable 

range." As she started to go into the stipulated facts — which 

she noted included his "preserv[ing] and protect[ing] the 

narcotics and profits of the organization through the use of 
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intimidation" — the judge interrupted and asked her follow-up 

questions about the defense's push for a lower guidelines 

calculation. Among her responses, the prosecutor stressed that 

the government could not ask for a protected-location enhancement 

because "that would be a breach of the plea agreement." During 

this back-and-forth between the prosecutor and the judge, Molina's 

lawyer broke in to object to the prosecutor's misstated 

recommendation for a sentence at the higher end of the sentencing 

range. But the judge said that he was "still trying to resolve 

the . . . objections you have with the presentence report." 

After explaining why the protected-location enhancement 

applied and the prior conviction counted toward his criminalhistory points,4 the judge gave defense counsel a chance to finish 

his comment on the government's sentence recommendation. The 

prosecutor's "upper end of the guideline" recommendation, defense 

counsel said, was "in clear breach" of the plea agreement, 

"[u]nless she wishes to withdraw that, I don't know." The 

prosecutor responded immediately, saying "that is correct. And we 

stand correct[ed]." She then explained her mistake, saying that 

most of the plea agreements in this multi-defendant drugconspiracy matter specified a sentencing range rather than a point 

 4 We need not get into the judge's reasons because Molina does 

not challenge the ruling on those two issues here. 
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within that range but that Molina's agreement was different: "[W]e 

withdraw that because . . . we usually do that within a range. 

But in this particular case, in order to reach a recommendation, 

we agreed that . . . the government was going to agree for the 

lower end of the applicable guideline range." 

Taking a belt-and-suspenders approach, the judge made 

doubly sure what the government's recommendation was: 

THE COURT: That [Molina] be sentenced to the lower end 

of the applicable guideline range . . . [t]hat is the 

recommendation of the government? 

[THE PROSECUTOR]: Yes. 

THE COURT: So the statement you previously made to the 

higher end, referring to the higher end of the guideline 

— 

[THE PROSECUTOR]: We withdraw that one. 

THE COURT: — you withdraw that? 

[THE PROSECUTOR]: Yes, Your Honor. 

Molina's counsel did not object to the prosecutor's 

revised recommendation, despite being given the chance to voice 

his objection. And counsel did not say that the prosecutor's error 

was incurable, that the cure was not effective, or that his client 

should be sentenced by a judge who had not heard the misstated 

recommendation. 

After listening to each side's lawyers, the judge 

proceeded to impose Molina's sentence. The 2-level increase for 
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a protected location and the 2-level decrease pursuant to Amendment 

782 effectively cancelled each other out. And skipping over 

details not relevant to this appeal, we see that the judge 

eventually settled on a total offense level of 33 (mirroring the 

total offense level set out in the plea agreement). Paired with 

a criminal-history category of II, Molina's sentencing range was 

151-188 months. After considering the offense elements, the 

parties' plea agreement, and the pertinent 18 U.S.C. § 3553(a) 

sentencing factors,5 the judge sentenced Molina to concurrent 188-

month sentences for the two drug charges and a consecutive 60-

month term for the firearm charge. 

From this sentence, Molina appeals, arguing that because 

the government breached the plea agreement, we must vacate and 

remand to a different judge for resentencing. The government 

argues otherwise, unsurprisingly.6

 5 The judge noted, for example, that this was Molina's 

"seventh known arrest and his fourth conviction" and that he had 

proven to be a serial probation violator. 

6 The government insists "that the corrected misstatement was 

not a breach," or, "if it was a breach," that "it was 

satisfactorily cured." But this distinction does not matter, 

since, either way, a sentencing remand is not called for. Cf. 

United States v. Oppenheimer-Torres, 806 F.3d 1, 4 (1st Cir. 2004) 

(concluding both that the prosecutor's misstatement "did not 

constitute a breach of the agreement" and that it was "not obvious 

that there was a breach that was not adequately corrected"). 
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DISCUSSION 

Standard of Review 

The parties dispute which standard of review governs, de 

novo — Molina's preferred standard; or plain error — the 

government's preferred standard. We side with the government: 

Molina never suggested to the judge that the prosecutor's misstep 

was incurable or that her correction was not enough to cure the 

error. And he did not ask for the relief he now wants — 

resentencing before a different judge. So we review only for plain 

error, see Oppenheimer-Torres, 806 F.3d at 4 — a famously 

difficult-to-satisfy standard, which requires Molina to show 

"error, plainness, prejudice to [him,] and the threat of a 

miscarriage of justice," see United States v. Torres–Rosario, 658 

F.3d 110, 116 (1st Cir. 2011); see also Puckett v. United States, 

556 U.S. 129, 142 n.4 (2009). 

Analysis 

In bygone days we routinely said that a prosecutor's 

"erroneous sentencing recommendation in breach of a plea agreement 

was not cured by withdrawal in favor of a belatedly compliant 

recommendation." Oppenheimer-Torres, 806 F.3d at 4 (citing United 

States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990), for our 

old approach). But then along came Puckett, where the high Court 

explained that "some [plea agreement] breaches may be curable upon 
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timely objection — for example, where the prosecution simply forgot 

its commitment and is willing to adhere to the agreement." 556 

U.S. at 140. 

With this in mind, and assessing the prosecutor's 

misstep in light of the transcript as a whole, we see "no obvious 

error in the [judge's] decision to proceed following the 

prosecution's unambiguous correction of its initial error." See 

Oppenheimer-Torres, 806 F.3d at 4. Remember: Before the 

prosecutor made the complained-about recommendation, she took 

pains to explain that the government intended to fulfill its pleaagreement obligations, as evidenced by her saying that the 

prosecution stood by the agreement's recommendations — which is 

why, for example, she refused to push for a protected-location 

enhancement (because the agreement did not include that 

enhancement). Avoiding a breach was a major goal of hers, we can 

fairly infer from the transcript. And although she got the 

recommendation wrong at first — asking for the high end instead of 

the low end of the sentencing range — she corrected the error when 

made aware of it. She also did so readily and forcefully — not 

grudgingly or misleading, as Molina suggests. It is safe to say, 

then, that all the sentencing-hearing participants "knew plainly 

and correctly that the government's considered recommendation was 
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as in the [a]greement." See id. All of which means that Molina 

cannot show plain error. See id. 

Arguing against this conclusion, Molina blasts the 

prosecutor for not calling her "breach . . . inadvertent." But 

the prosecutor did make an inadvertence claim. Recall: The 

prosecutor explained to the judge that other recommendations in 

this multi-defendant case were for sentences within certain 

ranges, rather than for a specific point within that range. 

Molina's case, it turns out, did involve dozens of defendants. 

And Molina was not the only defendant surnamed Molina-Quintero. 

Interestingly, the other Molina-Quintero's plea agreement called 

for a sentence recommendation "within the applicable guideline 

range for a total offense level of thirty three (33)" — for what 

it is worth, the misstated recommendation here would have been 

perfectly proper under that agreement. All in all, looking at the 

whole picture, we view the prosecutor's unfortunate misstatement 

as an indication of confusion on her part — not as "a sign that 

the government had second thoughts" about the plea agreement's 

recommendation. See id. 

Insisting that the prosecutor neither "defend[ed]" the 

agreement's "low-range" recommendation nor "counteract[ed] the 

premises" undergirding her "high-range" proposal, Molina relies on 

pre-Puckett caselaw — Kurkculer, for example — to argue that the 
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prosecutor's withdrawal of the offending recommendation with a 

substitution of the agreed-upon one could not "cure" the problem 

because "[t]he damage had already been done." But the Supreme 

Court's Puckett decision and our decision in Oppenheimer-Torres 

knock the legs out from under that argument. See OppenheimerTorres, 806 F.3d at 4 (noting how Puckett changed the law in this 

circuit). 

The bottom line is that Molina fails the plain-error 

test because, as in Oppenheimer-Torres, "it is not obvious that 

there was a breach that was not adequately corrected as the Supreme 

Court anticipated in Puckett." See Oppenheimer-Torres, 806 F.3d 

at 4. 

CONCLUSION 

Our work over, we affirm Molina's sentence.