          United States Court of Appeals
                       For the First Circuit

No. 12-1477

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                        JOHN MURPHY-CORDERO,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

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



                               Before

                   Torruella, Selya and Thompson,
                           Circuit Judges.




     Joseph A. Boucher Martínez for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, for appellee.




                            May 24, 2013
            SELYA, Circuit Judge.     This sentencing appeal presents a

modest set of issues that are susceptible to swift resolution.       We

briefly explain why we reject the defendant's appeal and affirm his

sentence.

            Defendant-appellant John Murphy-Cordero, a/k/a Hot Dog,

pled guilty to a charge of conspiracy with intent to distribute

controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846,

and 860.    At sentencing, the district court fashioned a sentencing

enhancement for possession of a dangerous weapon (a gun) during and

in the course of the crime of conviction, see USSG §2D1.1(b)(1),

and constructed the guideline sentencing range accordingly.         The

court then imposed a 210-month incarcerative sentence. This timely

appeal ensued.

            The   appeal    raises   three   issues.   We   treat   them

sequentially.

            We start with an issue concerning the scope of the

appeal.    The defendant entered his guilty plea pursuant to a non-

binding plea agreement.        See Fed. R. Crim. P. 11(c)(1)(B).    The

plea agreement did not mention the possibility of a dangerous

weapon enhancement.        It did, however, contain a waiver-of-appeal

provision, which stated in pertinent part that if the district

court "accepts this Plea Agreement and sentences [the defendant]

according to its terms, conditions and recommendations, defendant




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waives and surrenders his right to appeal the judgment and sentence

in this case."

            At the disposition hearing, the district court referenced

the waiver-of-appeal provision and suggested that it operated to

limit any appeal to the propriety of the newly emergent dangerous

weapon     enhancement.        The   defendant     objects     to     any    such

circumscription of his appeal.

            The defendant's objection is well-founded.              The right to

appeal the imposition of a criminal sentence is a substantial right

and, thus, waivers of that right must be knowing, voluntary, and

unequivocal.       See United States v. Teeter, 257 F.3d 14, 24 (1st

Cir. 2001).        Moreover, waiver-of-appeal provisions, like other

terms and conditions memorialized in plea agreements, are construed

in accordance with contract-law principles.            See United States v.

Ortiz-Santiago, 211 F.3d 146, 151 (1st Cir. 2000).

            Here, the plea agreement obligated both parties to

recommend to the district court "that defendant be sentenced to one

hundred    and   sixty-eight    (168)   months   of    imprisonment         should

defendant fall under Criminal History Category I, II or III."                 The

district court found that the defendant was in Criminal History

Category    III,    but   nonetheless   eschewed      the   joint    sentencing

recommendation and sentenced him to a longer term of immurement:

210 months.        The court attributed the longer sentence to the




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dangerous weapon enhancement and suggested that any appeal would be

limited to testing the propriety of the enhancement.

            The waiver-of-appeal provision does not make the fine

distinction envisioned by the district court.                    Under its plain

language,    the   district      court's     rejection      of    the    168-month

sentencing recommendation — a material term of the plea agreement

— vitiated the waiver-of-appeal provision in its entirety.                      Cf.

United    States   v.   Obeid,   707    F.3d   898,   904    (7th       Cir.   2013)

(explaining that "[t]he plain language of the [plea] agreement

controls so long as its terms are unambiguous"). Consequently, the

scope of this appeal is not circumscribed.

            Although the defendant wins this battle, he loses the

war.     Each of his two remaining claims of error lacks force.                  We

explain briefly.

            First, the defendant challenges the two-level dangerous

weapon enhancement.       The applicable guideline provides that if,

during the course of the crime of conviction, "a dangerous weapon

(including a firearm) was possessed" by the defendant, a two-level

enhancement applies. USSG §2D1.1(b)(1). The defendant posits that

the record does not support the application of this guideline to

his case.    The defendant is wrong.

            To begin, defense counsel admitted in the district court

that the defendant possessed firearms during the commission of the

offense of conviction.      This constituted a waiver of the claim of


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error that he now attempts to advance.              See United States v.

Jiménez, 512 F.3d 1, 7 (1st Cir. 2007); United States v. Rodríguez,

311 F.3d 435, 437 (1st Cir. 2002).         In all events, the presentence

investigation report (PSI Report) specifically stated that the

defendant, as part and parcel of his criminal conduct, "would carry

and   possess   firearms   in   furtherance    of   the   drug   trafficking

organization."    The defendant did not object to any aspect of the

PSI Report's factual account, including the statement quoted above.

This circumstance, without more, constitutes a sufficient basis for

rejecting   the   defendant's    claim    of   error.     When   a   fact   is

specifically set out in a presentence investigation report and is

not the subject of a timely objection, the district court may treat

the fact as true for sentencing purposes.           See United States v.

Medina, 167 F.3d 77, 81 (1st Cir. 1999); United States v. Rosales,

19 F.3d 763, 770 (1st Cir. 1994).         It follows, therefore, that the

dangerous weapon enhancement was adequately grounded in the record.

            This leaves only the defendant's plaint that the district

court did not sufficiently consider the factors limned in 18 U.S.C.

§ 3553(a) and, to make a bad situation worse, failed adequately to

explain its sentencing rationale.1        At the outset, we note that the


      1
       The sentencing factors set out in 18 U.S.C. § 3553(a)
include, as pertinent here:

      (1) the nature and circumstances of the offense and            the
      history and characteristics of the defendant; (2)              the
      need for the sentence imposed-- (A) to reflect                 the
      seriousness of the offense, to promote respect for             the

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defendant did not raise this multi-faceted objection (or any part

of it) in the court below.     Our review is, therefore, for plain

error.   See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001); United States v. Robinson, 241 F.3d 115, 119 (1st Cir.

2001).   There is no plain error here.

            To be sure, a sentencing court is, as a general matter,

obliged to consider the section 3553(a) factors in formulating a

sentence.    See, e.g., United States v. Quiñones-Medina, 553 F.3d

19, 26 (1st Cir. 2009); United States v. Martin, 520 F.3d 87, 91

(1st Cir. 2008).     However, we have never required "an express

weighing of mitigating and aggravating factors."   United States v.

Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012).      Nor have we

decreed that each section 3553(a) factor must be "individually

mentioned" by the sentencing court.       Id.   This avoidance of

ironclad rules recognizes that "[a] sentencing court's process of

ratiocination can often be inferred by comparing what was argued by

the parties or contained in the presentence report with what the

judge did." United States v. Dávila-González, 595 F.3d 42, 48 (1st


     law, and to provide just punishment for the offense; (B)
     to afford adequate deterrence to criminal conduct; (C) to
     protect the public from further crimes of the defendant;
     . . . (3) the kinds of sentences available; (4) the kinds
     of sentence and the sentencing range established for
     . . . the applicable category of offense committed by the
     applicable category of defendant as set forth in the
     guidelines . . . ; (5) any pertinent policy statement
     . . . issued by the Sentencing Commission . . . [;] (6)
     the need to avoid unwarranted sentence disparities among
     defendants with similar records . . . .

                                 -6-
Cir. 2010) (internal quotation marks omitted).                 Substance controls

over form.

            In the case at hand, it is readily apparent that the

sentencing court considered the relevant section 3553(a) factors.

The record makes manifest that the court read the PSI Report and

exhibited a familiarity with its contents.                     It heard defense

counsel's     detailed      plea    for     leniency     and    the    defendant's

allocution.       In the end, it took into account not only the

defendant's history, characteristics, and personal circumstances,

but also the nature and gravity of the offense.                 It then imposed a

sentence at the nadir of the applicable guideline sentencing range.

We discern no error, plain or otherwise.

            The defendant's related charge — that the court failed

adequately to explain the sentence — is equally unavailing.                      In

this regard, the court stated succinctly:

                   This individual has a prior history of
            convictions. He has seven prior arrests, and
            only two convictions. He has a pending case
            of firearms in state court. . . .

                   So what I will do is sentence him at
            the lower end of the applicable guideline
            range . . . .

            This explanation, though terse, was sufficient.                This is

especially    true      because    the    sentence   imposed     was   within   the

guideline sentencing range. While the guidelines are advisory, see

United   States    v.    Booker,    543    U.S.   220,   245    (2005),   and   the

guideline sentencing range is not controlling with respect to the

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reasonableness of a particular sentence, see United States v.

Gates, 709 F.3d 58, 71 (1st Cir. 2013); United States v. Jiménez-

Beltre, 440 F.3d 514, 517-18 (1st Cir. 2006) (en banc), the fact

that a     sentence   is   within   a    properly   calculated   range   bears

directly on the needed degree of explanation: a within-the-range

sentence typically requires a less elaborate explanation than a

variant sentence.     See United States v. Madera-Ortiz, 637 F.3d 26,

30 (1st Cir. 2011); United States v. Turbides-Leonardo, 468 F.3d

34, 41 (1st Cir. 2006).      Where, as here, a sentencing court offers

a plausible rationale in support of a within-the-range sentence, it

need not wax longiloquent.      In this context, as elsewhere, brevity

is sometimes a virtue rather than a vice.

            We need go no further. For the reasons elucidated above,

the defendant's sentence is summarily affirmed.             See 1st Cir. R.

27.0(c).



Affirmed.




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