                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 10-1018

                             UNITED STATES,

                                Appellee,

                                     v.

                             RAYMOND DAVIS,

                        Defendant, Appellant.


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

           [Hon. D. Brock Hornby, U.S. District Judge]


                                  Before

                       Lynch, Chief Judge,
              Boudin and Thompson, Circuit Judges.



     William S. Maddox on brief for appellant.
     Margaret D. McGaughey, Appellate Chief and Thomas E. Delahanty
II, United States Attorney, on motion for summary affirmance for
appellee.



                           January 18, 2011
          Per Curiam.   This is Raymond Davis's direct appeal from

his 84-month sentence, which included a downward departure for

substantial assistance below the otherwise applicable 120-month

mandatory minimum.   The government has moved to dismiss the appeal

as barred by an appeal waiver in Davis's plea agreement, under

which Davis agreed to waive his right to appeal as long as his

sentence was not longer than 120 months. For the reasons discussed

below, we agree that the appeal waiver precludes this appeal and

therefore grant the government's motion and summarily dismiss the

appeal.

          Ordinarily,    the    standards   for    assessing    the

enforceability of an appeal waiver are those set forth in United

States v. Teeter, 257 F.3d 14, 24-25 (1st Cir. 2001).1   Under those

standards, presentence waivers of appeal are enforceable if the

waiver was "knowing" and "voluntary" and if enforcing it would not

result in a "miscarriage of justice."   Id. at 24-25.


     1
      We have held that where, as here, a defendant did not object
in the district court to the sufficiency of that court's
explanation of an appeal waiver, appellate review of that issue is
under the demanding plain-error standard.     Borrero-Acevedo, 533
F.3d 11, 13 (1st Cir.), cert. denied, 129 S. Ct. 587 (2008).
However, where, as is also true here, the government does not
invoke that standard in its discussion of the appeal waiver, we
have continued to apply the Teeter standards without the plain-
error overlay. See United States v. Edelen, 539 F.3d 83, 85 n.1
(1st Cir.), cert. denied, 129 S. Ct. 427 (2008); United States v.
Chandler, 534 F.3d 45, 49 n.3 (1st Cir. 2008). We therefore apply
the Teeter standards here. But, because we see no error, plain or
otherwise, in the district court's explanation of the appeal
waiver, the standard of review is immaterial to our disposition of
this case.

                                -2-
            Davis's sole argument against enforcing the appeal waiver

is that the waiver was unknowing because he did not understand what

factors the court would apply in determining the extent of any

downward departure for substantial assistance.2      In adjudicating

such a claim, we evaluate whether the written plea agreement

"contains a clear statement elucidating the waiver and delineating

its scope" and whether the district court "inquire[d] specifically

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

Id. at 24; see also Fed. R. Crim. P. 11(b)(1)(N) (requiring such an

inquiry).

            Davis makes no argument that the written appeal waiver

was unclear.    Nor does he find fault with the district court's

explanation of that waiver at the change-of-plea hearing.     Rather,

his argument focuses exclusively on Davis's purported lack of

understanding that the court would not apply the factors contained

in 18 U.S.C. § 3553(a) in determining the length of the downward

departure for substantial assistance.

            Any misunderstanding in that regard cannot be attributed

to the district court's lack of explanation, either at the change-

of-plea hearing or at sentencing.      At the change-of-plea hearing,

there was no occasion for the court to explain how it would



     2
      Although he alludes to the "manifest injustice" prong of the
Teeter standard in his statement of the standard of review, he
makes no argument that enforcing the waiver in this case would be
manifestly unjust.

                                 -3-
determine the extent of any downward departure for substantial

assistance, since, at that point, the government had not moved for

such a departure, and the parties' cooperation agreement expressly

stated that the government was not required to do so.                  In the

absence of such a motion or any other basis for determining what

Davis's sentence was likely to be, the court explained, in general

terms, that it would calculate the guideline range but might depart

or vary from that range and confirmed that Davis understood that

explanation.     Nothing more was required.          See Fed. R. Crim. P.

11(b)(M) (requiring the court "to inform the defendant of, and

determine    that   the   defendant    understands   .   .   .   the   court's

obligation to calculate the applicable sentencing-guideline range

and   to   consider   that   range,    possible   departures      under    the

Sentencing     Guidelines,    and     other   sentencing     factors      under

§ 3553(a)").

            At sentencing, the court made perfectly clear that it

would not consider the section 3553(a) factors in determining the

extent of the downward departure.3            It also clearly explained

Davis's appeal waiver and ascertained that Davis understood it.


      3
      The court's conclusion that it could not do so was correct.
See United States v. Poland, 562 F.3d 35, 41 (1st Cir. 2009);
United States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002).
Therefore, any argument that justice requires overlooking the
appeal waiver to reach Davis's argument to the contrary--the sole
substantive argument made on appeal--would be unavailing.      See
United States v. Nguyen, 618 F.3d 72, 76 (1st Cir.) (holding that
where there was no error, there was "a fortiori, no miscarriage of
justice"), cert. denied, 131 S. Ct. 548 (2010).

                                      -4-
          Davis has thus failed to show that the appeal waiver was

unknowing and therefore unenforceable.   Accordingly, the appeal is

summarily dismissed.   See 1st Cir. R. 27.0(c).




                                -5-
