          United States Court of Appeals
                     For the First Circuit


No. 18-1802

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

                       JUAN M. SANTIAGO,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Gustavo A. Gelpí, Chief U.S. District Judge]


                             Before

                  Lynch, Boudin, and Kayatta,
                         Circuit Judges.




     Raymond Luis Sánchez-Maceira on brief for appellant.
     Mariana E. Bauzá-Almonte, Assistant United States Attorney,
David C. Bornstein, Assistant United States Attorney, and Rosa
Emilia Rodríguez-Vélez, United States Attorney, on brief for
appellee.


                        January 3, 2020
             BOUDIN, Circuit Judge.               In June 2017, Juan Santiago

("Santiago") pled guilty in Puerto Rico district court to being a

felon   in    possession    of       a    firearm     and     ammunition.        See

18 U.S.C. § 922(g)(1).          In       August    2018,    the   district     court

sentenced Santiago to thirty-seven months in prison and ordered

that the sentence run consecutively to a seven-year sentence

Santiago had previously received for an unrelated state drug

offense.     Santiago now contests the district court's decision to

impose a consecutive, as opposed to concurrent, sentence.

             The   facts   of    Santiago's         federal    offense   are    not

challenged on appeal, but, for context, the parties have stipulated

as follows: On April 3, 2017, Santiago encountered police officers

in the common area of a housing project in Puerto Rico and

immediately fled on foot.        The officers followed and saw Santiago

throw a firearm to the ground, at which point they detained him.

After waiving his rights, Santiago claimed ownership of the firearm

and ammunition and admitted he had no permit for the weapon.

Santiago had previously sustained a state felony conviction for

conspiring to distribute controlled substances in March 2016.

Santiago had failed to appear at sentencing in the state proceeding

in January 2017 and was sentenced in absentia.                     When Santiago

committed the instant federal offense in April 2017, he had not

yet begun serving his state sentence.



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           On appeal, Santiago asserts that the district court

violated United States v. Booker by treating Sentencing Guideline

5G1.3(a), which recommends a consecutive sentence in a case like

Santiago's, as mandatory.       See 543 U.S. 220 (2005).          Santiago

claims the district court would have imposed a concurrent sentence

had it not felt bound by Guideline 5G1.3(a).

           At the threshold, the government argues that Santiago's

appeal is barred because, as part of his guilty plea, he expressly

waived his right to appeal "any aspect" of his sentence if the

sentence was within or below the guideline range for a total

offense level of nineteen when combined with his criminal history

category   ("CHC")   as   determined   by   the   district   court.1      At

sentencing, the district court ruled that Santiago had a CHC of




     1 The full text of the waiver provision in Santiago's plea
agreement reads:

           Defendant knowingly and voluntarily agrees
           that, if the sentence imposed by the Court is
           within or below the guideline range for the
           total offense level calculated in this Plea
           Agreement when combined with the Defendant's
           criminal history category as determined by the
           Court, the Defendant waives the right to
           appeal any aspect of this case's judgment and
           sentence, including but not limited to the
           term    of    imprisonment    or    probation,
           restitution, fines, forfeiture, and the term
           and conditions of supervised release.

     The plea   agreement    calculates     a   total   offense   level   of
nineteen.

                                 - 3 -
III.   After concluding that the resulting guideline range for a

total offense level of nineteen was thirty-seven to forty-six

months, the judge imposed a thirty-seven-month sentence, thus

satisfying the condition on which the appeal waiver rested.

             In this circuit, an appeal waiver is enforceable if the

defendant    knowingly   and   voluntarily   agreed     to   its    terms    and

enforcement would not result in a miscarriage of justice.               United

States v. Teeter, 257 F.3d 14, 24-26 (1st Cir. 2001).                  Because

Santiago concedes that his appeal waiver was knowing and voluntary,

the issue is whether a miscarriage of justice exists.               See United

States v. Davis, 923 F.3d 228, 239-40 (1st Cir. 2019).

             Santiago argues that he is young; he has a history of

mental and emotional issues; he would have received less prison

time   had    the   judge   doubled   his    sentence    and       imposed    it

concurrently; his CHC already accounts for his state conviction;

and no good will come from him serving a consecutive sentence.               In

other words, Santiago says his federal sentence is excessive when

combined with his state sentence.

             Sentencing Guideline 5G1.3(a) recommends a consecutive

sentence "[i]f the instant offense was committed . . . after

sentencing for, but before commencing service of, [another] term

of imprisonment."        U.S.S.G. § 5G1.3(a).     Santiago agrees that

Guideline 5G1.3(a) applies to his case, but argues that the



                                  - 4 -
district   court    misconstrued   this    guideline   as   mandatory   in

violation of Booker.

           The miscarriage-of-justice exception is reserved for

"egregious cases," Teeter, 257 F.3d at 25, is used "sparingly,"

id. at 26, and "requires a strong showing of innocence, unfairness,

or the like," United States v. Gil-Quezada, 445 F.3d 33, 37 (1st

Cir. 2006).2       Although Santiago says that the district court

applied the guidelines in a mandatory fashion, United States v.

Cardona-Díaz describes such a claim         as "too trivial to warrant

discussion in light of [his] waiver of appeal."         524 F.3d 20, 23

n.1 (1st Cir. 2008).

           Not only is the default rule under both federal law and the

sentencing guidelines that the sentence run consecutively in a case

like Santiago's, see 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3(a), but

Santiago also agrees the district court properly could, in its

discretion, have imposed his sentence consecutively.         Leaving this

"otherwise lawful, within-guidelines sentence" in place does not work

a miscarriage of justice, United States v. Cabrera-Rivera, 893 F.3d

14, 24 (1st Cir. 2018), so Santiago's appeal waiver bars this appeal.

           Affirmed.




     2 Teeter describes the type of errors that might qualify
thusly: the use of "constitutionally impermissible factors (say,
race or ethnicity)" at sentencing or the imposition of a "sentence
exceeding the maximum penalty permitted by law." 257 F.3d at 25
nn.9–10. Santiago's claim pales in comparison.
                                   - 5 -
