          United States Court of Appeals
                     For the First Circuit


Nos. 14-1514, 14-1515, 14-1516

                    UNITED STATES OF AMERICA,

                            Appellee,

                                 v.

                  ANGEL ABNER BETANCOURT-PÉREZ,

                      Defendant, Appellant.


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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                   Lynch, Selya, and Thompson,
                         Circuit Judges.


     Joshua L. Gordon on brief for appellant.
     Mainon A. Schwartz, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney,
on brief for appellee.


                         August 10, 2016
               THOMPSON, Circuit Judge.     For his involvement in various

illegal drug-related activities, Defendant-Appellant Angel Abner

Betancourt-Pérez was indicted in three separate criminal cases,

which were resolved by a single plea agreement.            Betancourt-Pérez

now appeals his sentence, arguing that the district court should

have accepted the plea agreement's guideline calculations.               But

since Betancourt-Pérez waived his right to appeal, we dismiss.

                                 BACKGROUND1

A. Arrest and Indictments

               On May 5, 2010, the government unsealed an indictment

charging 70 co-conspirators for their participation in a large

drug       trafficking   organization   known   as   "El   Castillo,"   which

operated out of a public housing project in Carolina, Puerto Rico,

and its surrounding areas.       Betancourt-Pérez, one of El Castillo's

"runners,"2 was among those indicted on various drug and firearm

counts.

               Although an arrest warrant was issued for Betancourt-

Pérez, he remained a fugitive for over a year.              Finally, on May


       1
       Because Betancourt-Pérez's convictions resulted from a
guilty plea, we draw the facts from the plea agreement, the
Presentence Investigation ("PSI") report, and the transcript of
the sentencing hearing. See United States v. Ocasio-Cancel, 727
F.3d 85, 88 (1st Cir. 2013).
       2
       A "runner" is basically a go-between for the drug-ring
higher-ups.  The runner supplies the street-level sellers with
drugs, collects the money from the sales, and pays the sellers
their share.


                                    - 2 -
10, 2011, after receiving a tip, law enforcement agents surveilled

Betancourt-Pérez's apartment and observed him loading boxes (in

which large quantities of marijuana were later found) into a

vehicle in the parking lot.        They arrested Betancourt-Pérez that

day, and also executed a search warrant for his apartment where

they found and seized more drugs and a gun.3            Based on what the

agents had observed and seized at the apartment, the government

filed a second indictment, charging Betancourt-Pérez with two drug

counts and a firearm count.

          Now, as it turns out, Betancourt-Pérez was not only a

member of El Castillo's operations, but also a part of another

drug conspiracy -- this one engaged in sourcing marijuana from

Mexico, California, and Florida, and distributing it throughout

Puerto   Rico.     For     these   separate    drug-related        activities,

Betancourt-Pérez was indicted a third time.

B. Plea Deal and Sentencing

          The    parties   eventually      negotiated   a   plea    deal   that

resolved the charges in all three of Betancourt-Pérez's criminal

cases.   As part of the deal, Betancourt-Pérez agreed to plead

guilty to one count of conspiracy to possess with intent to

distribute from each of the three indictments, involving between



     3 The government also found a collection of jewelry, the topic
of a related civil forfeiture appeal, which we address in a
separate opinion issued herewith.


                                   - 3 -
3.5 and 5 kilograms of cocaine, between 2 and 3.5 kilograms of

cocaine,    and   between   100   and   400   kilograms   of   marijuana,

respectively, as well as one count from the second indictment for

possession of a firearm in furtherance of a drug trafficking crime.

            Because of the relatedness of the drug crimes, the plea

deal grouped the three conspiracy counts together, and calculated

a guideline range of 51 to 63 months (an erroneous calculation,

the parties now agree).4      As for the firearm charge, as provided

for   by   U.S.S.G.   §   2K2.4(b),   the   plea   agreement   assigned   a

consecutive guideline sentence equal to the statutory minimum, in

this case 60 months, 18 U.S.C. § 924(c)(1)(A)(i).



      4The plea agreement came to this guideline sentence based on
a total offense level of 24 and a criminal history category ("CHC")
of 1. The plea agreement determined the total offense level as
follows: it assigned a base offense level ("BOL") of 26 based on
the quantity of drugs involved, added 1 level for protected
location (the public housing project), and subtracted 3 levels for
acceptance of responsibility.       But the BOL calculation was
incorrect.
     Based on the drug quantities to which Betancourt-Pérez pled
guilty, the three conspiracy counts together involved the
"marihuana equivalent" of between 1,200 and 2,200 kilograms of a
controlled substance, for which the BOL (at the time of these
proceedings) was 32.     See U.S. Sentencing Guidelines Manual
("U.S.S.G.") § 2D1.1 application note 8(B), (D) (U.S. Sentencing
Comm'n 2012) (instructing that 1 gram of cocaine is equal to 200
grams of marijuana); id. § 2D1.1(c)(5) (assigning a BOL of 30 for
offenses involving "at least 1,000 KG but less than 3,000 KG of
Marihuana"). Despite elsewhere stating clearly the cocaine and
marijuana quantities involved, the plea agreement inexplicably
assigned a BOL based on only 100 to 400 kilograms of marijuana.
It was also mistaken in adding only 1 level for the protected
location; it should have added 2. See id. § 2D1.2(a)(1).


                                  - 4 -
             The   plea    agreement      went   on    to   memorialize       a     joint

sentencing    recommendation:        concurrent       sentences    of    60       to   120

months for the three conspiracy counts, and a consecutive 60-month

sentence for the firearm charge.             The agreement also contained a

provision in which Betancourt-Pérez waived his right to appeal, so

long as he was sentenced in accordance with this sentencing

recommendation.

             Betancourt-Pérez       pled    guilty     to   the   four   counts          on

October 18, 2013.        A PSI report was completed in April 2014.                     Like

the parties' plea agreement, the PSI report grouped the three

conspiracy counts together.            Unlike the plea agreement, the PSI

report assigned (correctly) a total offense level of 31.5                           Based

on the total offense level and Betancourt-Pérez's CHC of 1, the

PSI report put the guideline range for the three conspiracy counts

at 108 to 135 months.              For the firearm charge, the guideline

sentence     remained       the     60-month       statutory      minimum           under

§ 924(c)(1)(A)(i).

             Betancourt-Pérez objected to the PSI report's guideline

calculations       and    argued    the    court      should   instead        use      the

calculations in the plea agreement because the parties had agreed



     5 The PSI report came to a total offense level of 31 by
calculating (properly, as we explain in our previous footnote) a
BOL of 32 based on the quantity of drugs involved. It then added
2 levels for the involvement of a protected location, and
subtracted 3 for acceptance of responsibility.


                                       - 5 -
to those calculations in coming to their deal.6      But in the end,

the district judge applied the correctly calculated guideline

range, and sentenced Betancourt-Pérez to concurrent 108-month (9-

year) sentences for the three conspiracy counts, which the judge

reasoned was still within the bargained-for 60-to-120-month range

to which the parties had agreed.     For the firearm count, the judge

imposed the agreed-upon 60-month (5-year) sentence, to be served

consecutively, thus sentencing Betancourt-Pérez to a total of 168

months   (14   years)   of   imprisonment.   Betancourt-Pérez   timely

appealed.

                                DISCUSSION

            On appeal, Betancourt-Pérez attempts to challenge the

district judge's refusal to adopt the plea agreement's guideline

calculations at sentencing.       But we can go no further until we

first address the threshold inquiry of whether Betancourt-Pérez's

appeal is waived.   See United States v. Miliano, 480 F.3d 605, 608

(1st Cir. 2007).


     6 We take a moment to square away a bit of housekeeping. The
merits of Betancourt-Pérez's appeal (which, for reasons we discuss
below, we do not reach) again raise this argument before us. In
support of the argument, Betancourt-Pérez moved during briefing to
supplement the appellate record with an unsigned draft of a
previous, failed plea agreement in which the guideline range was
correctly calculated. Betancourt-Pérez argued that the fact that
this prior deal failed shows he would not have agreed to the
current plea deal but for its (erroneous) lower guideline
calculations. Because we do not reach the case's merits, it makes
no difference, and so we assume, favorably to Betancourt-Pérez,
that we may admit the draft agreement into the record.


                                  - 6 -
             As best we can tell, Betancourt-Pérez attempts to get

around the waiver by arguing (1) that he may not have been

sentenced in accord with the plea agreement because the agreement's

sentence recommendation provision is ambiguous, and (2) that the

probation     office's    filing    of   a   PSI   report   that   contained

contradictory guideline calculations constituted a breach of the

plea   agreement.        Unfortunately   for   Betancourt-Pérez,     we   are

convinced by neither argument.

A. Waiver

             Appeal waivers in plea agreements are "presumptively

valid," so long as: (1) the agreement clearly delineates the

waiver's scope; (2) the district court specifically inquired about

the waiver at the plea hearing; and (3) denial of the right to

appeal would not constitute a miscarriage of justice.                United

States v. Teeter, 257 F.3d 14, 23-25 (1st Cir. 2001).

             In considering the scope of an appeal waiver, we apply

basic contract principles.         United States v. Arroyo-Blas, 783 F.3d

361, 365 (1st Cir. 2015).          Ambiguities are construed in favor of

allowing the appeal to proceed, "[b]ut, '[i]f a plea agreement

unambiguously resolves an issue, that usually ends the judicial

inquiry.'"     Id. at 365 (second alteration in original) (quoting

United States v. Alegria, 192 F.3d 179, 183 (1st Cir. 1999)).

             Here, the waiver of appeal in the parties' plea agreement

states: "The defendant knowingly and voluntarily waives the right


                                     - 7 -
to appeal the judgment and sentence in this case, provided that

the defendant is sentenced in accordance with the terms and

conditions set forth in the Sentence Recommendation provisions of

this Plea Agreement."

            Betancourt-Pérez argues that the sentence recommendation

provision is ambiguous, and that it is therefore uncertain whether

his sentence was, in fact, in accord with the provision.               The

sentence recommendation provision reads, in full:

      As to COUNT ONE[, the conspiracy count in each of the
      three criminal cases,] [t]he defendant may request a
      sentence of sixty (60) months of imprisonment and the
      United States reserve[s] the right to request a sentence
      of up to one hundred and twenty (120) months of
      imprisonment to be served concurrently with each other,
      based on the factors in [18 U.S.C. § 3553(a)].

      Additionally, as to [the firearm count,] the parties
      agree to recommend that defendant be sentenced to sixty
      (60) months of imprisonment, consecutive to any term of
      imprisonment imposed for COUNT ONE in [the three]
      criminal   cases.     The   parties   agree  that   any
      recommendation for a term of imprisonment of less than
      one hundred and twenty (120) months, will constitute a
      breach of the plea agreement.

            As to the provision's first sentence, Betancourt-Pérez

attempts to argue that, despite its plain words to the contrary,

it must be interpreted as permitting a maximum recommendation of

not   120   months,   but   only   63   months,   because   this   reading

"harmonize[s]" the plea agreement's sentence recommendation with

its guideline calculation, erroneous though it may be, of 51 to 63




                                   - 8 -
months for the conspiracy counts.     We disagree.7   The text of the

provision's first two sentences is unambiguous: the sentences

state that the parties will recommend the judge impose concurrent

sentences in the 60-to-120-month range for the three conspiracy

counts and a consecutive 60-month sentence for the firearm count.

          We think it equally clear that the third sentence then

goes on to recap that the lowest overall sentence that could

accordingly be recommended is 120 months (i.e., a minimum 60 months

for the conspiracy counts, plus 60 months for the firearm count).

But Betancourt-Pérez quibbles with this third sentence as well: he

argues that it is ambiguous because it can be interpreted as

prohibiting a recommendation of less than 120 months either for

the whole sentence, or just for the firearm count.      Specifically,

Betancourt-Pérez reasons that the first two sentences begin with

"As to COUNT ONE" and "Additionally, as to [the firearm count],"

and therefore make clear to which counts they refer.       The third

sentence, he argues, contains no such clause and thus, by contrast,




     7 It appears Betancourt-Pérez himself disagreed as well.
During the change of plea hearing, Betancourt-Pérez stated he
"underst[oo]d clearly" that the plea agreement provided that, "for
purposes of sentencing recommendations" for the three conspiracy
charges, he could "request a sentence of 60 months of imprisonment"
and the government could "request a sentence up to 120 months."
Indeed, a 60-to-120-month sentence recommendation for the
conspiracy counts aligns with the guideline range for the drug
quantities to which Betancourt-Pérez pled guilty.


                              - 9 -
is imprecise as to whether it refers to all the counts or the

firearm count only.

            But we see no such ambiguity.        To the contrary, we think

the fact that the third sentence is the only one in the trio

without a qualifier clarifies that the third sentence is not

restricted to the firearm count, and applies instead to the overall

sentence.    Furthermore, applying basic contract principles, we

consider the agreement as a whole.            United States v. Okoye, 731

F.3d 46, 49 (1st Cir. 2013).            Preceding sections of the plea

agreement make it clear that the parties agreed to a guideline

sentence    of   60   months   for   the   firearm   count   to   be   served

consecutively to any sentence for the conspiracy counts.8

            There is thus no basis for us to read into the provision

the   ambiguity   that   Betancourt-Pérez       suggests.    The   sentence

recommendation provision makes plain that the parties contemplated

a total term of imprisonment for all the charges of no less than

120 months and no more than 180 months.           When the district court

imposed the ultimate sentence of 168 months of imprisonment, it

imposed a sentence that fell squarely within the parameters of the

parties' recommendation.



      8Betancourt-Pérez also stated during the change of plea
hearing that he "underst[oo]d clearly" that both parties agreed he
would "be sentenced to 60 months of imprisonment[ for the firearm
offense], which has to be consecutive to any sentence imposed [for
the conspiracy counts]."


                                     - 10 -
              Betancourt-Pérez has not met his burden of showing that

he meets Teeter's second and third requirements, either. The judge

dutifully inquired about the waiver during the change-of-plea

colloquy, and Betancourt-Pérez does not argue otherwise.              Nor does

he point us to any error sufficiently "glaring" that it requires

reversal under Teeter's sparingly applied "miscarriage of justice"

exception.     Miliano, 480 F.3d at 608.        In fact, his argument that

the   judge    erred   in    rejecting   the   plea    agreement's   guideline

calculation is altogether unavailing.                 The parties' guideline

calculations were not binding on the judge, see Fed. R. Crim.

P. 11(c)(3)(B), as Betancourt-Pérez expressly acknowledged in the

plea agreement and during his change-of-plea hearing.                  And the

text of the plea agreement, as well as the transcripts from the

change-of-plea     and      sentencing   hearings,     all   make   plain   that

Betancourt-Pérez fully understood he had bargained for a total

sentence between 120 and 180 months (or 10 to 15 years).               This is

indeed what the government recommended, and it is what he got.

That the district judge arrived at the ultimate 168-month (14-

year) sentence by way of different (more correct) arithmetic than

Betancourt-Pérez would have preferred does not invalidate the

appeal waiver.

B. Breach

              As for the claim that the government breached the plea

agreement -- an argument subject to plain error review because


                                    - 11 -
Betancourt-Pérez never raised it below, see United States v.

Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014) -- it is utterly

without merit.        Betancourt-Pérez points to no statement or direct

conduct on the part of the prosecution that can be seen as a

violation of the agreement.              Instead, he claims that merely

"allowing submission of the PSI [report], in which the grouping

calculation contravenes the plea agreement, [was] itself a breach

of the plea agreement."        We disagree.

           Neither      the   probation    officer    who   prepared    the   PSI

report nor the district court, which accepted its filing, were

parties   to    the    plea   agreement.       The   agreement    was   between

Betancourt-Pérez and the United States Attorney's Office for the

District of Puerto Rico, which has no control over the preparation

or submission of the PSI report.               In fact, in preparing a PSI

report,   the   probation      officer    is   expected     "to   exercise    his

independent judgment as to the application of the guidelines."

United States v. Fraza, 106 F.3d 1050, 1056 (1st Cir. 1997).                  The

PSI report therefore cannot be attributed to the prosecution, nor

can the district court's consideration and acceptance of the

report's independent recommendations be considered a breach of the

parties' agreement.

           Betancourt-Pérez        was     thus      sentenced     within     the

parameters of the plea agreement's appeal waiver, and the plea




                                    - 12 -
agreement was not breached.   Accordingly, we dismiss Betancourt-

Pérez's appeal.




                              - 13 -
