          United States Court of Appeals
                      For the First Circuit

No. 13-2064

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     JONATHAN DELGADO-FLORES,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté,     U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
               Howard and Kayatta, Circuit Judges.


     Barry S. Pollack, Peter J. Duffy and Pollack Solomon Duffy LLP
on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division and Francisco A. Besosa-Martínez, Assistant United States
attorney, on brief for appellee.



                         February 6, 2015
             HOWARD, Circuit Judge.         After pleading guilty to a drug

conspiracy charge, appellant Jonathan Delgado-Flores was sentenced

to 135 months' imprisonment.          Writ small, the conspiracy involved

the use of boats to smuggle drugs from Puerto Rico and the

Dominican Republic to the mainland United States.                     Delgado now

seeks to have his sentence reduced or his case remanded for a new

sentencing     hearing,    claiming     that   the       government    materially

breached a plea agreement.        The parties dispute whether Delgado

preserved for appeal the issue of whether the government breached

the agreement.    We do not resolve that issue, as the result is the

same regardless of the standard of review.                See United States v.

Gonczy, 357 F.3d 50, 52 (1st Cir. 2004) (observing that if a proper

objection is brought before the district court, breaches of plea

agreements    present     questions    of    law   for    plenary     review,   but

unpreserved arguments are reviewed for plain error).                   Finding no

breach, we affirm the sentence.

             Two provisions of Delgado's plea agreement are central to

this appeal. First, the agreement stipulated that Delgado would be

held responsible for the importation of between fifteen and fifty

kilograms of cocaine.          This drug quantity would, assuming a

Criminal History Category I and agreed-upon adjustments yield a

sentencing guideline range of 135 to 168 months.                       The second

salient provision called for the government to recommend a sentence

at the low end of the range -- 135 months -- while Delgado could


                                       -2-
argue        for      the   statutory      minimum     of    120    months,     which    the

government, in turn, could oppose. The agreement explicitly stated

that        it    was     not    binding   on    the   court.       Fed.   R.    Crim.    P.

11(c)(1)(A), (B).

                   Consistent with the agreement, at sentencing defense

counsel sought a 120-month sentence, arguing essentially that

Delgado           was     less    culpable      than   others      in   this    particular

conspiracy, and that the statutory minimum sentence was "sufficient

but not greater than necessary."                   18 U.S.C. § 3553.       For its part,

the government argued for the agreement's 135-month maximum.

                   Two primary issues were then discussed. First, the judge

expressed concern that Delgado also had been involved in firearms

sales related to the drug conspiracy and rejected any defense

argument that the firearms were unrelated to the conspiracy.1

Next, in response to defense counsel's observation that Delgado's

role was limited to helping construct secret storage compartments

(known           as     "clavos")   on     a    vessel,     the    judge   accepted      the

government's argument that the compartments were complicated and

required expertise to build.                   For example, the following colloquy

took place, referencing evidence introduced at the trial of a co-

conspirator:


        1
       At the time of sentencing, Delgado already had been
convicted of a related firearms charge, for which he received a
twenty-four month sentence.    Because the firearms activity was
relevant conduct with respect to the drug conviction, the sentences
would run concurrently.

                                                -3-
          MS. GRAY [defense counsel]: Okay. Judge, but
          we are talking about things we were not a
          party to.

          THE COURT: No. He's talking to me about the
          clavos and how sophisticated the clavos were.

          MS. GRAY: Right, but we weren't there.

          THE COURT: His argument is if he was involved
          in the clavos, the involvement in the clavos
          is a very sophisticated thing.       It's not
          necessarily getting a hatchet and a hammer and
          saw and making a hole in the floor.


Delgado takes direct aim at comments by the prosecutor that

followed soon after and drew the ire of defense counsel:

          MR. CARDONA [prosecutor]: And the point being
          Mr. Delgado was there, because he was in
          charge that this would go in and out as fast
          as possible, because they were moving in that
          particular load 500 kilograms.      The only
          reason the transaction's not completed is
          because the mothership did not make it to the
          rendezvous point. But otherwise it was going
          to be a major transaction.

          THE COURT: The clavo would take 500 kilograms?

          MR. CARDONA: Absolutely, Judge.     Actually,
          pictures were presented to the jury --

          THE COURT: I saw them.

          MR. CARDONA: -- in which 150 were only one
          corner.

          MS. GRAY: That's what I'm saying, we keep
          talking about the jury saw that. We were not
          able -- that's Sixth Amendment, he had no
          ability to cross-examine or see what you guys
          are talking about.

          THE COURT: All we're talking about is a clavo.


                               -4-
          MS. GRAY: He's talking about 500 kilos and
          what he saw --

          THE COURT: He is responsible for at least 15
          kilos, not more than 50 kilos. Not 500 kilos.

          MS. GRAY: Exactly.

          THE COURT: But the fact is the clavos are a
          sophisticated mechanism that requires -- you
          know, you need to be able to use these
          plungers, which are electrically operated, to
          be able to use them as locks. And, you know,
          the point he's making, that your colleague
          from the Government is making, that it's not
          as simple as getting a saw and a hammer and
          just making a hole on the bottom of a -- on
          the deck of a ship, and that's it, like any
          carpenter would do. You need more than that.
          That's what he's saying.     He's not saying
          anything else.

          MS. GRAY: Okay.

          THE COURT: That's all.

Then the discussion returned to the plea agreement:

          MR. CARDONA: Just to be clear on the record, I
          am recommending exactly what is in the Plea
          Agreement, Judge.

          THE COURT: What are you recommending?

          MR. CARDONA: It's 135 months, which is the
          recommendation in the Plea Agreement.

          THE COURT: Okay.

          MR. CARDONA: So there cannot be arguments
          later on appeal that I was recommending more.

          THE COURT: You have done nothing wrong here.
          All you have done is explain the nature of the
          clavo.   And the operation is something he
          knows and everybody knows. I mean, we're not
          talking about -- this is not a rudimentary
          hole that you would make in, as I said before,

                               -5-
           with a little lid or something like an old man
           would do to put a kind of box full of money or
           something of the sort. That's not it. This is
           a very complicated mechanism that is intended
           to deceive even Customs people, look likes
           [sic] part of the boat, is made for that
           purpose.

           MR. CARDONA: Very well.

           THE COURT: Could be an inspection compartment.
           It could be a compartment for maintenance. It
           could be so many things.

           Delgado asserts that the prosecutor's reference to "500

kilograms" was a not-so-subtle argument for a drug amount in excess

of that specified in the plea agreement, and that the argument

convinced the district court to impose the 135-month sentence

rather than 120 months.        Neither part of Delgado's hypothesis

withstands scrutiny.

           Here,   the    government   was   obligated   to   proceed   at

sentencing pursuant to a stipulated drug amount and sentencing

recommendation and it did exactly that, making repeated, explicit

references to both.      See Santobello v. New York, 404 U.S. 257, 262

(1971) (“[W]hen a plea rests in any significant degree on a promise

or agreement of the prosecutor, so that it can be said to be part

of   the   inducement    or   consideration,   such   promise   must    be

fulfilled.”); see also United States v. Almonte-Nuñez, 771 F.3d 84,

89 (1st Cir. 2014) (finding no breach where prosecutor "said

nothing that could reasonably be construed as an indication" of

support for a higher than agreed-upon offense level).           Here, the


                                   -6-
mention of the capacity of the clavos came up only in the context

of the compartment's complexity and in response to defense counsel

downplaying the issue.          "There is no basis for concluding that the

prosecutor reaffirmed a promise to the defendant out of one side of

[his] mouth and tried to subvert it out of the other side."

Almonte-Nuñez, 771 F.3d at 91.

             Finally,      we     reject     Delgado's     argument     that     the

government's     alleged        breach    caused    the   judge    to   treat    the

stipulation as "conservative" and thus impose the maximum sentence

that the agreement recommended. This claim is based on the court's

following comment about the plea agreement:

             THE COURT: Right. There was a conservative, if
             you will, conservative drug relevant conduct
             stipulation. Could have been a lot more, but
             he was -- he signed for at least 15, less than
             50 kilos, which if you think about it in the
             context   of   this  kind   of   case,  is   a
             conservative amount.

But,   contrary       to   Delgado's        assertion,     in     describing    the

"conservative"    drug        amount     stipulation,     the   sentencing     judge

specifically referred to the "context of this kind of case," which

suggests that he was thinking far more broadly than just the

prosecutor's comment. Moreover, the judge's concern over Delgado's

firearms involvement also played a role in sentencing Delgado in

accordance     with     the     government's       within-guidelines     sentence

recommendation.       Against this backdrop, we find no breach of the




                                           -7-
plea agreement, and, therefore, the judgment of the district court

is affirmed.




                               -8-
