          United States Court of Appeals
                     For the First Circuit


No. 19-1129

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

  HECTOR VALDEZ, a/k/a Arnaldo Lopez, a/k/a Jose Ocasio, a/k/a
Jose Altagracia, a/k/a Jorge Figueroa, a/k/a Hector Nunez, a/k/a
  Jesus Perez, a/k/a Ramon Alvarez Vegas, a/k/a Hector Bolivar
                    Valdez Nunez, a/k/a Boli,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                             Before

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


     Robert B. Mann and Robert B. Mann Law Office on brief for
appellant.
     Donald C. Lockhart, Assistant United States Attorney, and
Aaron L. Weisman, United States Attorney, on brief for appellee.


                          July 9, 2020
            LYNCH, Circuit Judge.         The defendant, Hector Valdez,

pleaded guilty pursuant to a plea agreement and was sentenced on

January 18, 2019, to 108 months' imprisonment and three years'

supervised release for his role in a major drug conspiracy that

distributed heroin and other drugs in Rhode Island, Massachusetts,

and Connecticut.     Although the plea agreement he signed contained

an appeal waiver, he now appeals anyway, arguing that upholding

the validity of the appeal waiver would constitute a "miscarriage

of justice."      Specifically, Valdez argues that the district court

erred in its consideration of the First Step Act, which was enacted

after Valdez signed the plea agreement but before he was sentenced.

See Pub. L. 115-391, 132 Stat. 5194 (codified in scattered sections

of 18 U.S.C. and 34 U.S.C.).

            The sentence the district court imposed was well below

the   guideline    range,   was   below     the   government's   recommended

sentence, and explicitly accounted for the impact of the First

Step Act.   There was no miscarriage of justice.          The appeal waiver

controls, and this appeal is dismissed.

A.    Background of the Offense and the Plea Agreement

            Valdez was arrested on April 11, 2017, along with his

brothers Juan and Claudio and others, for his role in a conspiracy

to distribute kilogram quantities of heroin (sometimes laced with

fentanyl) and cocaine and other quantities of cocaine base (crack

cocaine)    and   opioids   in    pill   form     throughout   Rhode   Island,


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Massachusetts, and Connecticut.           The arrests were the result of a

multi-year      investigation        conducted      by    ten      different    law

enforcement agencies.             Valdez was charged with conspiring to

distribute, and to possess with intent to distribute, one kilogram

or more of heroin, and also substances containing fentanyl, cocaine

base,   and    cocaine,     in    violation    of   21    U.S.C.    §§ 841(a)(1),

(b)(1)(A), and 846.         He was also charged with illegal re-entry

after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2).

              All   three     brothers     had      prior    drug     trafficking

convictions, and each had been deported previously.                     All three

were leaders and organizers of the drug conspiracy, but Hector

Valdez played more of a supporting role.              He was, as described in

the Presentence Investigation Report ("PSR"), "perhaps the least

culpable of the three Valdez brothers," while still being "an upper

level   conspirator"        and    part   of   "the      inner-circle    in    this

conspiracy."

              Valdez signed a plea agreement on May 2, 2018.                  Valdez

had multiple prior convictions.            If the government had sought a

sentencing enhancement based on all of them, under the law at the

time the plea agreement was negotiated, Valdez would have faced a

mandatory life sentence.           Under the terms of the plea agreement,

however, the government agreed to seek a sentencing enhancement

under 21 U.S.C. § 851 based on only one of his prior convictions,

thereby reducing his sentencing exposure to less than a life


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sentence.     The government also agreed to file a motion under

U.S.S.G. § 5K1.1 recognizing Valdez's substantial assistance to

the authorities and "asking the Court to impose a sentence below

the guideline sentencing range and mandatory minimum sentence of

20 years imprisonment."         The agreement acknowledged that "the

decision whether, and to what extent to grant [the motion], is

solely up to the Court."

            Valdez agreed to cooperate in the government's case.

And he agreed to waive his right to appeal "if the sentence is a

term of imprisonment of 20 years or less."

            At the change of plea hearing on May 18, 2018, the

district court asked Valdez if he understood that he was waiving

his right to appeal the sentence imposed if the sentence was

"within or below the guideline range."         Valdez replied, "Yes."

B.   Sentencing Proceedings

            On   August   30,   2018,   as   contemplated   in   the   plea

agreement, the government filed a sentence enhancement information

under 21 U.S.C. § 851 listing only the one prior felony drug

conviction.

            After accounting for Valdez's objection to an earlier

draft, the final PSR was filed with the district court on November

21, 2018.   It calculated a Total Offense Level ("TOL") of 33, not

35 as an earlier draft of the PSR had stated, and a Criminal

History Category ("CHC") of II.            Based on that, the Guideline


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Sentencing Range ("GSR") would have been 151 to 181 months'

imprisonment.        But because of a statutorily-imposed mandatory

minimum, the restricted guideline sentence was 240 months', or

twenty years', imprisonment.

            As contemplated in the plea agreement, on November 27,

2018, the government filed a motion pursuant to U.S.S.G. § 5K1.1

for a downward departure below the twenty-year mandatory minimum.

The government recommended a five-level reduction in the offense

level and a sentence of 120 months', or 10 years', imprisonment.1

            Before the end of the sentencing proceedings, Congress

enacted the First Step Act on December 21, 2018. Section 401(a)(1)

of the Act changed the definition of "serious drug felony" such

that the drug conviction the government used in support of a

sentencing enhancement under 21 U.S.C. § 851 could no longer serve

as   the   basis    for   a   twenty-year      mandatory   minimum   sentence.

Instead, Valdez was subject to a ten-year mandatory minimum for

all drug offenses involving a kilogram or more of heroin, see 21

U.S.C. § 841(b)(1)(A), before accounting for the impact of the

government's       § 5K1.1    motion    and    any   downward   departure   in




      1   The government recommended a five-level reduction from
35 to 30, which produced a GSR of 108 to 135 months' imprisonment.
This calculation apparently was made partially in error because
the final PSR, released six days prior, had calculated an updated
TOL of 33, not 35. A five-level reduction from the updated TOL of
33 would produce an adjusted GSR of 87 to 108 months' imprisonment.
Any such error is immaterial to this appeal.


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recognition of Valdez's substantial assistance, see 18 U.S.C.

§ 3553(e).

             Valdez filed a response to the government's § 5K1.1

motion on January 14, 2019.     The response explained why, under the

First Step Act, the twenty-year mandatory minimum sentence would

no longer apply.    It acknowledged that the TOL still would be 33,

as calculated by the PSR, with a resulting GSR of 151 to 188

months' imprisonment before accounting for any downward departure

in recognition of Valdez's substantial assistance.

             Valdez's response to the § 5K1.1 motion then described

several ways that the government might update its recommended

sentence to account for the enactment of the First Step Act.

Valdez argued that a sentence of between sixty and ninety-seven

months would be appropriate and consistent with the logic of the

government's     previous   recommendation.          Ultimately,    based    on

factors described in 18 U.S.C. § 3553(a), Valdez recommended that

the   district     court    sentence     him    to     thirty-six      months'

imprisonment.

             Valdez's   sentencing    hearing   occurred     several    weeks

later, on January 18, 2019.          First, the parties agreed that the

PSR had correctly calculated a TOL of 33, not 35, and a CHC of II,

with a corresponding GSR of 151 to 188 months' imprisonment.                The

parties also agreed with the defense's analysis that the First

Step Act applied to Valdez because he had not been sentenced at


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the time of enactment.       Therefore, the prior conviction that was

the basis for the sentencing enhancement that had subjected him to

the twenty-year minimum was no longer considered a "serious drug

offense," and Valdez was subject to the ten-year minimum instead.

The parties also agreed that, because the government had filed a

§ 5K1.1 motion for Valdez's substantial assistance, Valdez was

effectively not subject to any mandatory minimum.

              The court then asked the government to update, in light

of the First Step Act's enactment, the sentencing recommendation

it had made in its § 5K1.1 motion.         The government continued to

recommend 120 months', or ten years', imprisonment, calling the

change in law "unanticipated," and representing that had it known

about the First Step Act during plea negotiations, it would have

structured    the   plea   agreement   differently   to   reach   the   same

recommended    sentence.     The   government   argued    that    ten   years

remained "fair" because of the nature of Valdez's offense, the

nature of his assistance to the government, the expectations of

the parties, and the need to avoid an unwarranted sentencing

disparity between Valdez and his two brothers, both of whom had

been sentenced to twenty years in prison.

             Defense counsel renewed the arguments he had made in his

response to the government's § 5K1.1 motion, after the First Step

Act was enacted.      Specifically, he continued to argue that the

government should not recommend the same sentence it did before


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the enactment of the First Step Act, and he described how the

government might recommend a sixty- or ninety-seven-month sentence

instead while remaining consistent with the logic of its previous

recommendation.

           The district court rejected the government's 120-month,

or ten-year, recommendation.         Instead, it applied the five-level

reduction the government had originally proposed to the correct

offense level of 33 to achieve an adjusted GSR of 87 to 108 months'

imprisonment.      The defense had proposed this analysis in its

response to the government's § 5K1.1 motion as one of several ways

the government might amend its sentencing recommendation.                   But

instead of selecting a sentence in the middle of that range, like

ninety-seven     months'    imprisonment,      as   Valdez     preferred,   the

district court sentenced Valdez to 108 months in prison and three

years' supervised release.        The court stated this sentence was

imposed to reflect the seriousness and scale of the crime, Valdez's

"five or six prior drug convictions," and his illegal reentry after

deportation.

           The   district    court    was    explicit   that    this   sentence

included recognition of his cooperation with the government and

that "the law has changed," a clear reference to the First Step

Act.   "I took a year off . . . what [the government] asked for as

a happenstance of the new FIRST STEP law . . . .               If not, I would

have stayed at the 120[-month recommendation], which I think was


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what the purpose of [the government's § 5K1.1 motion] was."    The

court then reminded Valdez that he agreed to an appeal waiver and

ended the hearing by saying: "I want to make sure the record is

clear, I applied the FIRST STEP Act here, I applied the [§ 5K1.1

motion], and I applied the guidelines in a way that I think does

justice and honor to all of them as well as to Mr. Valdez."

          Valdez timely appealed.

C.   The Appeal Waiver Controls

          Valdez argues that he should be allowed to appeal despite

his appeal waiver.   His argument is not that there is anything

defective in the appeal waiver itself, which applies since he was

sentenced to 108 months in prison, within the "20 years or less"

contemplated in the plea agreement.    Rather, he argues that his

case satisfies the test for when an appeal waiver must be set

aside.

          United States v. Morillo describes the criteria used to

evaluate the claims Valdez makes:

          - First, the written waiver must comprise "a
          clear statement" describing the waiver and
          specifying its scope.     [United States v.]
          Teeter, 257 F.3d [14,] 24 [(1st Cir. 2001)].
          - Second, "[m]indful" of [Federal] Rule [of
          Criminal Procedure] 11(b)(1)(N), the record
          must show that the judge's interrogation
          "suffice[d] to ensure that the defendant
          freely and intelligently agreed to waive [his
          or] her right to appeal [his or] her
          forthcoming sentence." Id.
          - Third, even if the plea agreement and the
          change of plea colloquy are satisfactory, the


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               reviewing court retains discretion to refuse
               to honor a waiver if denying a right to appeal
               would "work a miscarriage of justice." Id. at
               25.

United States v. Morillo, 910 F.3d 1, 2 (1st Cir. 2018) (some

alterations in original), cert. denied, 139 S. Ct. 949 (2019).

               Valdez does not challenge the first two grounds. Rather,

he    argues    that   his   appeal    waiver   should   be   set   aside   under

Morillo's "miscarriage of justice" standard.               He argues that the

district court committed a miscarriage of justice by considering

the government's sentencing recommendation of 120 months', or ten

years', imprisonment, even though that recommendation "was based

on an incorrect version of the presentence report and did not take

into proper account the First Step Act, resulting in an erroneous

guideline calculation."

               There was no miscarriage of justice, and the appeal

waiver controls.         The district court did not make any erroneous

calculations, let alone an error that would have made this one of

the    "egregious      cases"   that   meets    the   miscarriage    of   justice

standard.       Morillo, 910 F.3d at 4 (quoting Teeter, 257 F.3d at

25).    The court correctly found that the pre-departure GSR was 151

to 188 months' imprisonment, based on a TOL of 33.                  It correctly

recognized that the First Step Act changed the pre-departure

mandatory minimum from twenty years to ten years. And the district




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court was correct that the government's § 5K1.1 motion eliminated

its obligation to sentence Valdez to this lower minimum.

             On appeal, Valdez almost concedes the point, focusing

much of his argument on what the government should have recommended

and not on what the district court ultimately did. Valdez provides

no authority for the proposition that the district court's mere

consideration of the government's recommendation could result in

a miscarriage of justice.

             Valdez received a sentence well below the unadjusted GSR

of 151 to 188 months' imprisonment.               The sentencing court's

"discretion to decide the amount of the departure after a 5K1.1

motion" is "almost unreviewable."          United States v. Webster, 54

F.3d 1, 4 (1st Cir. 1995). Nonetheless, the district court applied

the   same     five-level   reduction      the    government    originally

recommended    in   recognition   of   Valdez's   assistance,   as   Valdez

requested.     The sentence was also below the government's updated

recommendation of 120 months, or ten years.          The court explicitly

accounted for the First Step Act as well and gave Valdez a year

less on his sentence than it would have otherwise, against the

government's recommendation.       There is no miscarriage of justice

that would excuse Valdez's waiver of his right to appeal.

D.    Conclusion

             The appeal is dismissed.




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