          United States Court of Appeals
                     For the First Circuit


No. 09-2287

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         ROBERT DONATH,

                      Defendant, Appellant.


         ON 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 Lipez, Circuit Judges.



     William Maselli was on brief for appellant.
     Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, were on brief for appellee.



                         August 17, 2010
             LYNCH, Chief Judge.              In November 2008, Robert Donath

agreed to plead guilty to three counts charging his participation

in a conspiracy to distribute cocaine and other drugs in the small

town of Lincoln, Maine.               As part of his plea agreement, Donath

expressly waived his right to appeal his plea or sentence if it did

not exceed 120 months.            The district court accepted Donath's plea

and    sentenced     him    to    a   below-guidelines      term    of   90   months'

imprisonment.

             Nonetheless, Donath appeals, urging that his appeals

waiver is unenforceable and that the district court erred when

calculating his sentence by mischaracterizing his prior crimes. He

says that error constituted a miscarriage of justice, which excuses

his waiver of appeal.            We find the waiver enforceable and dismiss

the appeal.

                                          I.

             Donath was indicted in September 2008 with fifteen other

suspected participants in the drug conspiracy.                      The indictment

charged     Donath    in    three      counts,   alleging    (1)    conspiracy      to

distribute and possess with intent to distribute 5 kilograms or

more   of   cocaine,       50    grams   or   more   of   cocaine    base,    and   an

unspecified quantity of oxycodone; (2) conspiracy to distribute and

possess with intent to distribute 500 grams or more of cocaine and

5 grams or more of cocaine base; and (3) a separate conspiracy

to distribute and possess with intent to distribute 500 grams or


                                          -2-
more of cocaine and 5 grams or more of cocaine base; all in

violation of 21 U.S.C. §§ 841(a)(1) and 846.

            Two months later, in early November 2008, Donath reached

an agreement with federal prosecutors to plead guilty to all counts

against him. Donath's written plea agreement described the charges

and   the   penalties     he   faced.     As   detailed    in   the   agreement,

conviction on Count 1 carried a mandatory minimum of ten years'

imprisonment with a maximum sentence of life in prison; conviction

on Counts 2 and 3 meant a mandatory                minimum of five years'

imprisonment with a maximum sentence of forty years in prison. The

agreement also specified fines, special assessments, and supervised

release terms associated with the charges.

            In    exchange     for   Donath's    guilty    plea   and   further

cooperation, the government agreed to recommend that the court give

Donath a three-level offense-level reduction for acceptance of

responsibility, pursuant to U.S.S.G. section 3E1.1.

            The   plea    agreement     included   an     explicit    waiver   of

Donath's right to appeal his plea or sentence, which read, in

relevant part,

            Appeal Waivers. Defendant is aware that Title 18,
            United States Code, Section 3742 affords a
            defendant the right to appeal the sentence imposed.
            Knowing that, Defendant waives the right to appeal
            the following:

                     A.      Defendant's guilty plea and any other
                             aspect of Defendant's conviction in the
                             above-captioned case; and


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                      B.     A sentence of imprisonment that does
                             not exceed 120 months.
            . . . .

                   The number of months mentioned in this
            paragraph does not necessarily constitute an
            estimate of the sentence that the parties expect
            will be imposed.

The agreement was not conditioned on, and in fact did not mention,

the issue of Donath's eligibility for 18 U.S.C. § 3553(f)'s "safety

valve"    adjustment.         Under   that     provision,   a   court   may     give

defendants who meet certain conditions, among them that they "not

have more than 1 criminal history point," a reduction from an

otherwise mandatory minimum sentence.1              Id. § 3553(f)(1).

            Donath signed the agreement on November 5, 2008, as did

his   counsel,    who      affirmed   that,    to   his   knowledge,    "Donath's

decision   to    enter     into   this   Agreement    [wa]s     an   informed    and

voluntary one."

            As part of this agreement, which was put on the public

docket, Donath also signed a supplemental agreement, which provided

him with letter immunity in exchange for his "full and truthful

cooperation."      This agreement was put under seal, presumably to

protect Donath.     The supplemental agreement expressly incorporated



      1
          The "other conditions are that the defendant not use
violence or possess a weapon, that the offense not result in death
or serious injury, that the defendant not organize the offense or
engage in a continuing criminal enterprise, and that the defendant
cooperate with the government." United States v. Maldonado, No.
09-1626, 2010 WL 2898250, at *1 n.1 (1st Cir. July 26, 2010)
(citing 18 U.S.C. § 3553(f)(2)-(5)).

                                         -4-
the terms of the publicly filed agreement.            The government further

agreed to "make known [Donath's] cooperation" upon Donath's request

but   did   not   commit   the   government   to     seeking   a   safety-valve

reduction.        Donath thus knew that if the court at sentencing

assigned him more than one criminal-history point he would be

ineligible for safety-valve relief. He also knew that there was no

agreement on this and that he had waived his right to appeal any

sentence the court would impose of 120 months or fewer.

            On February 25, 2009, Donath pled guilty in the district

court.      During   Donath's    plea    colloquy,    he   confirmed   that   he

understood the terms and conditions of his plea agreement and that

the agreement was not binding on the court as to sentencing

guidelines calculations.         The district court explicitly detailed

the consequences of Donath's plea waiver, noting that although

Donath ordinarily would have the right to appeal,

            you're agreeing here not to take any appeal of your
            guilty plea and conviction, and you're also
            agreeing that you won't appeal your sentence as
            long as it's not more than 120 months or ten years.
            In other words, if I sentence you at 120 months or
            less, I'm the last judge in your case and you're
            agreeing that you'll not be able to overturn what I
            do.

When the court asked Donath if he understood the waiver, Donath

responded that he did. After further colloquy on other issues, the

court accepted Donath's guilty plea.

            Donath appeared for sentencing on September 8, 2009.              At

the outset of the proceedings, the district court noted that the

                                        -5-
sole disputed issue was the presentence report's ("PSR") assignment

of three criminal-history points to Donath, which precluded his

eligibility for safety-valve relief.          See 18 U.S.C. § 3553(f)(1).

Donath's objection to the PSR focused on its assignment of two

criminal-history    points    for    misdemeanor       "Criminal      Mischief"

convictions in December 1998 and April 2001.2            The first of these

convictions   was   for   breaking   a     window.     The   second    was   for

"recklessly damag[ing] and destroy[ing] tires and property."                 In

both cases, Donath represented himself in Maine district court; the

state court assessed him a $150 fine for the first conviction and

a $150 fine and $365 in restitution for the second.

          Donath argued that these convictions were minor offenses,

which, under section 4A1.2(c)(1) of the guidelines, should not

yield criminal-history points.        Although misdemeanor convictions

are generally counted in defendants' criminal histories, section

4A1.2(c) provides an exception when (1) the sentence for the past

conviction was less than one year's probation or thirty days'

imprisonment and (2) the past offense is one of or is "similar to"

certain offenses listed in the guideline.            U.S.S.G. § 4A1.2(c)(1);

see also United States v. Matos, No. 09-1178, 2010 WL 2674483, at



     2
          Because the PSR's assignment of a third criminal-history
point for a 2009 Maine conviction for "Obstruction of Government
Administration" would not affect Donath's eligibility for safety-
valve relief if both the criminal mischief convictions were
counted, see 18 U.S.C. § 3553(f)(1), the district court found "it
unnecessary to resolve that issue."

                                     -6-
*7 (1st Cir. July 7, 2010).             Donath claimed that his criminal

mischief   convictions       were    similar     to    the     listed    offense     of

"disorderly conduct or disturbing the peace."

           The district court rejected Donath's argument that he

should   not    receive      criminal-history         points    for     these    prior

convictions.     The district court considered United States v. May,

343 F.3d 1 (1st Cir. 2003), which compared criminal mischief and

disorderly     conduct    under     Maine     law   and    held   that     statutory

differences,    as    well    as    May's   offense       conduct,      rendered   the

offenses dissimilar for purposes of section 4A1.2(c)(1).                        Id. at

10. The district court explained that May's analysis of Maine law,

as well as "the underlying conduct here"--particularly the fact

that Donath, like May, had destroyed his victims' property--

distinguished Donath's criminal mischief offenses from disorderly

conduct.

           Accordingly, the court found that Donath was ineligible

for safety-valve relief.           The ten-year mandatory minimum made his

guidelines range 120 to 121 months' imprisonment. Had the criminal

mischief misdemeanors not been counted toward his criminal-history

points and the safety valve been applied, the bottom of Donath's

guideline sentencing range would have been considerably lower.

           As it had agreed, the government recommended a sentence

reduction based on Donath's acceptance of responsibility.                           The

government     also    cited       Donath's    extensive        cooperation        with


                                        -7-
authorities     as   a   basis   for   downward   departure,    see    U.S.S.G.

§ 5K1.1, for a total recommended reduction of 24 months.              The court

accepted the government's recommendation but granted a larger, 30-

month departure from Donath's minimum guidelines sentence and

sentenced him to concurrent 90-month sentences on each of the three

counts of conviction.       At no time did Donath seek to withdraw his

plea in the district court.

                                       II.

            Donath makes two related arguments on appeal: that his

appeals waiver should not be enforced and that, reaching the

underlying issue if his waiver is set aside, the district court

erred by assigning him criminal-history points for his criminal

mischief convictions.       We find Donath's waiver enforceable and do

not reach the merits of his second claim.

            Our assessment of enforceability of a waiver of criminal

appeal generally involves "a step-by-step determination of the

nature   and    circumstances     of   the   waiver"   to   ensure    "that   the

defendant's entry into the waiver was knowing and voluntary; that

the sentencing court adequately explained its import; that the

putative appeal came within the scope of the waiver; and that

enforcement of the waiver . . . would not work a miscarriage of

justice."      United States v. Calderón-Pacheco, 564 F.3d 55, 58 (1st

Cir. 2009) (citing United States v. Teeter, 257 F.3d 14, 23-24 (1st




                                       -8-
Cir. 2001)); see also United States v. Cardona-Díaz, 524 F.3d 20,

22 (1st Cir. 2008).

            Donath does not take issue with the first three factors.

Donath knowingly and voluntarily waived his right to this appeal,

the district court adequately explained the consequences of his

waiver, and this putative appeal falls within the scope of the

waiver.      His    claim    instead   turns   on    his   argument    that   the

sentencing court "felt unnecessarily bound" by May and that, under

these circumstances, enforcing the plea agreement would constitute

a miscarriage of justice.          This argument is meritless.

            The     miscarriage-of-justice          exception     is   "applied

sparingly    and    without    undue   generosity"     and   is   reserved    for

"egregious cases."          Teeter, 257 F.3d at 25-26; see also United

States v. Pratt, 533 F.3d 34, 37 (1st Cir. 2008); Cardona-Díaz, 524

F.3d at 22.       That Donath may have a different reading of the May

decision than the district court's straightforward analysis of the

case and its bearing on Donath's past offenses is not even arguably

within     the    category    of   miscarriage-of-justice         claims.      We

discourage such attempts to turn garden-variety disputes into

miscarriage-of-justice claims.          That ends the matter; however, we

make an additional point that appeals such as this should not be

brought.

            When enforcing the appellate waiver, we stress that both

sides are obligated to live by the bargain they made.                       Donath


                                       -9-
entered his plea and waived his right to appeal knowing that his

eligibility for safety-valve relief remained uncertain.               His plea

agreement did not reserve the ability to appeal the issue of his

eligibility for the safety-valve determination.            Had Donath wanted

to condition his plea on safety-valve eligibility, he could have

bargained for that right.         Cf. United States v. Santiago, 229 F.3d

313, 315 (1st Cir. 2000).         If he wanted to first know how his PSR

would treat his past convictions, he could have requested that the

PSR be prepared before he signed the plea agreement.                Cf. United

States v. Maldonado, No. 09-1626, 2010 WL 2898250, at *1 (1st Cir.

July 26, 2010).       Donath chose to do neither.

          Here, the government more than satisfied its end of the

agreement.       As    pledged,    the    government    both   recommended   a

substantial reduction in Donath's sentence for his acceptance of

responsibility and notified the court that Donath had cooperated

with authorities.       Moreover, although it had not agreed to do so,

the government urged the court to reduce Donath's sentence for his

cooperation.       The    district      court   accepted   the   government's

recommendation    and    granted    a    yet-larger    sentencing   departure.

Donath has received the benefit of his bargain.

                                        III.

          For these reasons, defendant's appeal is dismissed.

          So ordered.




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