          United States Court of Appeals
                        For the First Circuit


No. 17-2042

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

ANIBAL ORSINI, a/k/a Ruben Guerrero, a/k/a Jay, a/k/a Jay South,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]


                                Before

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


     Elizabeth Latif on brief for the appellant.
     Halsey B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.


                           October 26, 2018
           SELYA, Circuit Judge.            During the sentencing phase of

his criminal case, defendant-appellant Anibal Orsini repeatedly

agreed that he should be sentenced as a career offender.                  See USSG

§4B1.1.   Taking the appellant at his word, the district court —

after independently finding that the appellant's criminal record

qualified him for career offender status — sentenced him as such

to a 188-month term of immurement.              On appeal, the appellant has

suffered an attack of buyer's remorse:                 he argues for the first

time that his prior criminal record does not include predicate

convictions sufficient to rank him as a career offender.                          The

government says that he has waived this argument.

           The orderly administration of justice depends upon a

network of rules.        The waiver rule is an important component of

this   network,    and   we    agree     with   the    government      that    waiver

principles are apposite here.                Applying those principles, we

discern no reason to allow the appellant to shed the consequences

of his waiver as easily as an iguana sheds its skin.                   Because the

appellant has waived his "career offender" argument and has made

no   showing    sufficient     to   excuse      that   waiver,    we    affirm    the

challenged sentence.

I. BACKGROUND

           We    briefly      rehearse    the    travel   of     the   case.      The

appellant was arrested and indicted in the aftermath of a major

drug-trafficking investigation spearheaded by federal authorities.


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On   March   28,    2017,    he   pleaded    guilty      to   a   single    count    of

conspiracy to distribute and possess with intent to distribute 100

grams or more of heroin and detectable quantities of cocaine

hydrochloride and fentanyl.          See 21 U.S.C. §§ 841(a)(1), 846.               The

probation department prepared a presentence investigation report

(PSI   Report),      which   recommended      among    other      things    that    the

appellant be sentenced as a career offender.                      See USSG §4B1.1.

The PSI Report premised this recommendation on three predicate

convictions reflected in the appellant's prior criminal record:                      a

2002   Massachusetts         drug-trafficking      conviction,        a     2012    New

Hampshire    sale-of-controlled-substance             conviction,     and     a    2013

Massachusetts drug-distribution conviction.

             The    appellant     objected    to   the    PSI     Report,    but    his

objections     did     not    directly       contest      the     career     offender

enhancement.       Rather, they centered around his claim that a number

of crimes attributed to him by the probation department (not

including     the     putative     predicate-offense            convictions)       were

actually committed by another individual.                Wiping away the fruits

of this mistaken identity, the appellant argued, would reduce his

criminal history score and, thus, reduce his criminal history

category.

             The probation department sustained this objection in

part; it agreed that some of the reported offenses had been

perpetrated by someone else and should not be attributed to the


                                      - 3 -
appellant.   But because the appellant did not challenge any of the

three specified career offender predicates, the revised PSI Report

continued to recommend that the sentencing court treat him as a

career offender.

            The appellant also objected to the total drug quantity

and resulting base offense level, see USSG §2D1.1(c), as well as

to proposed firearms and role-in-the-offense enhancements, see id.

§§2D1.1(b)(1),     3B1.1(b).       Notwithstanding       the   appellant's

misgivings, the probation department declined to consent to any

further changes to the PSI Report.

            The district court held a conference on August 10, 2017,

to "find out what is in dispute before the [sentencing] hearing."

The court began by questioning the relevance of the appellant's

remaining    identity-based    objections,    pointing   out   that   those

objections, even if sustained, would not alter the appellant's

criminal history category (which would, in any event, be a function

of his career offender status).1          Defense counsel took no issue




     1  Of course, sustaining the appellant's identity-based
objections to additional convictions would have reduced the number
of criminal history points attributable to him and, thus, lowered
his criminal history score. See USSG §4A1.1. But any such revised
calculations would not have affected his criminal history
category. After all, once a district court classifies a defendant
as a career offender, the sentencing guidelines dictate the
defendant's placement in criminal history category VI, regardless
of his criminal history score.     See id. §4B1.1(b).    Thus, the
appellant's criminal history category would not have been affected
by the elimination of the additional convictions.


                                  - 4 -
with this statement.      When the court later repeated that the

identity-based objections would "not affect [the appellant's]

criminal    history   category   in    light   of   the   career   offender

provisions," counsel acknowledged that the court was "correct."

            The court proceeded to address the drug-quantity issue

and the proposed enhancements.        It noted, however, that even using

a drug-quantity figure satisfactory to the appellant, his career

offender status would yield a significant guideline sentencing

range (188-235 months).    For that reason, the court suggested that

the parties eschew any further wrangling over either drug quantity

or enhancements and simply stipulate to the 188-235 month range.

The parties accepted the court's suggestion and, as a result, the

government abandoned its pursuit not only of an increased drug

quantity but also of the proposed enhancements — revisions that

would have more than doubled the guideline sentencing range.

            The record makes manifest that, by this time, the court

had indicated that it planned to classify the appellant as a career

offender and the appellant had affirmed his career offender status.

Consistent with this affirmation, the court repeatedly referred,

during the pre-sentence conference, to the parties' agreement with

respect to career offender status and to the court's intention to

sentence the appellant as a career offender.         The appellant never

demurred.    To cinch matters, his counsel explicitly stated:           "I

should be clear on the record.        Based on the current law . . . and


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based on his convictions as they currently stand he is a career

offender."

             On October 16, 2017, the district court convened the

disposition hearing.      Without objection, the prosecutor submitted

exhibits substantiating the predicate-offense convictions on which

the   appellant's      career    offender         designation      hinged.        The

prosecutor added that both sides "agree on the career offender

guideline range" and that the remaining factual objections to the

PSI Report need not be resolved.                  Defense counsel joined the

chorus,    responding   "[t]hat       is   correct,       [y]our   [h]onor."      In

addition, the appellant personally agreed that he was a career

offender.       Last    but     not    least,       the    appellant's       counsel

straightforwardly      told   the     court   —    immediately      prior    to   the

appellant's allocution — that "Mr. Orsini is clearly a career

offender."

             The district court found the appellant to be a career

offender and imposed a bottom-of-the-range term of immurement (188

months).    This timely appeal ensued.

II. ANALYSIS

             In this venue, the appellant is represented by new

counsel.      As framed, his appeal raises only a single issue.

Despite his earlier acknowledgement that he should be sentenced as

a career offender, the appellant assigns error to the district

court's treatment of him as such.


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            Under the sentencing guidelines, career offender status

automatically results in a criminal history category of VI (the

highest category available).            See USSG §4B1.1(b).            A defendant is

subject to classification as a career offender if (1) he was at

least eighteen years old at the time he committed the offense of

conviction; (2) that offense was either a felony crime of violence

or a felony controlled substance offense; and (3) his conviction

followed "at least two prior felony convictions of either a crime

of violence or a controlled substance offense."                        Id. §4B1.1(a).

In   the   case    at   hand,    the    appellant         plainly      meets   the    age

requirement, and his offense of conviction plainly qualifies as a

felony controlled substance offense.                 However, he claims for the

first time on appeal that two of the three predicate convictions

denominated in the PSI Report — his 2002 Massachusetts drug-

trafficking       conviction    and     his       2012    New   Hampshire      sale-of-

controlled-substance       conviction         —    fail    to   qualify       as   career

offender predicates.           This claim beckons us down the long and

winding    path    along   which       federal      courts      must    use    either   a

categorical or modified categorical approach to compare a state

crime to its generic federal counterpart.                  See, e.g., Descamps v.

United States, 570 U.S. 254, 260-61 (2013); United States v.

Dávila-Félix, 667 F.3d 47, 55-56 (1st Cir. 2011).

            Here, however, we need not set out on such a stroll.

The appellant's claim of error does not get out of the starting


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gate.    The government submits that the claim was waived, and we

agree.

              We have made it luminously clear that "[a] party waives

a right when he intentionally relinquishes or abandons it." United

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).                   As a

general rule, a waived claim is unreviewable and, thus, cannot be

revisited on appeal.         See id.     Though the effects of a waiver are

sometimes harsh, the costs are justified by the systemic benefits:

the    rule   of    waiver   is   critically    important    to   the   orderly

administration of justice.             Nor is waiver a quixotic procedural

trick:    the waiver rule is grounded in principles of "fairness,

judicial economy, and practical wisdom."                 Nat'l Ass'n of Soc.

Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995).

              Waivers allow trial courts to narrow the issues and

concentrate        scarce   judicial    resources   on   genuinely   contested

matters — and when a trial court makes a reasoned decision, it is

unfair to allow a party to subvert that decision by resurrecting

a waived claim.         See United States v. Torres-Rosario, 658 F.3d

110, 116 (1st Cir. 2011) (characterizing waivers as "undertakings

[that] are critical in managing the business of courts").                Given

the importance of waivers in the fabric of litigation, it is not

surprising that appellate courts normally enforce waivers with

"near-religious fervor."          Nat'l Ass'n of Soc. Workers, 69 F.3d at

627.


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             It follows, we think, that when a party explicitly

affirms a fact in the district court, that party risks waiving

"both existing and yet-to-be-recognized rights."            United States v.

Bauzó-Santiago, 867 F.3d 13, 24 (1st Cir. 2017) (quoting Torres-

Rosario, 658 F.3d at 116).      For example, a defendant who "accepts

the probation department's configuration of the sentencing record

. . . can scarcely be heard to complain when the sentencing court

uses those facts in making its findings."               United States v.

Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir. 2006) (quoting United

States v. Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993)).             So, too,

"[a] party who identifies an issue, and then explicitly withdraws

it, has waived the issue" and cannot resurrect it on appeal.

Rodriguez, 311 F.3d at 437.

             The doctrine of waiver fits this case like a glove.         The

record makes pellucid that the appellant's career offender status

was referenced no fewer than ten times over the course of two

sentencing     hearings.      Throughout,     the   appellant's       counsel

repeatedly and unequivocally affirmed that the appellant should be

sentenced as a career offender, and the appellant himself reprised

this affirmation.     Nor does the record leave any room for doubt

that both the appellant and his counsel knew the significance of

the   career   offender    provision   in   relation   to    his   sentencing

exposure.




                                  - 9 -
          Here, moreover, opting to affirm his career offender

status appears to have been a deliberate stratagem designed to

give the appellant a distinct tactical advantage.    The appellant

agreed that he should be sentenced as a career offender and, in

return, the government agreed not to press either for an increased

drug quantity or for role-in-the-offense and firearms guideline

enhancements — items that had the potential, collectively, to boost

the top of the applicable guideline sentencing range from 235

months to 480 months.     This quid pro quo exchange makes evident

that the appellant intentionally relinquished the claim that he

now seeks to resurrect.    On this record, waiver is manifest.   See

United States v. Eisom, 585 F.3d 552, 556 (1st Cir. 2009) (finding

defendant waived particular sentencing claim when he objected

below and then withdrew his objection); Rodriguez, 311 F.3d at 437

(similar); cf. Torres-Rosario, 658 F.3d at 116 (observing that

defendant's express affirmation of basis on which he was sentenced

ordinarily amounts to a waiver).

          In an effort to blunt the force of this reasoning, the

appellant argues that his unresolved factual objections to the PSI

Report were sufficient to preserve the claim he now advances. This

argument is belied by his representation to the court below that

those objections impacted only his criminal history score and not

his career offender status.        Indeed, when confirming to the

district court that the appellant was "a career offender," his


                               - 10 -
counsel expressly stated that "the [criminal history] points .

.   . don't matter." Given the lack of any fit between the preserved

objections and the waived claim of error that the appellant now

seeks to revivify, the appellant's argument fails.

             The appellant has a fallback position.   He suggests that

even if his late-blooming argument against career offender status

was waived, that waiver ought to be excused. This suggestion lacks

substance.

             To be sure, the waiver rule may "admit[] of an occasional

exception" in extraordinary circumstances.       Nat'l Ass'n of Soc.

Workers, 69 F.3d at 627.    Such exceptions, though, are hen's-teeth

rare:   they are granted, in the appellate court's discretion, only

sparingly, and when the "equities heavily preponderate in favor of

such a step."    Id.   In deciding whether an exception is warranted,

we may consider factors "such as whether the inadequately preserved

arguments are purely legal, are amenable to resolution without

additional factfinding, are susceptible to resolution without

causing undue prejudice, are highly convincing, are capable of

repetition, and implicate matters of significant public concern."

Sindi v. El-Moslimany, 896 F.3d 1, 28 (1st Cir. 2018). We likewise

may consider whether waiver of the claim below "yielded [a]

tactical advantage to the defendant[]."         Nat'l Ass'n of Soc.

Workers, 69 F.3d at 628.       So, too, we may consider whether an




                                 - 11 -
intervening change in the law may have a substantial bearing on

the equities.      See Torres-Rosario, 658 F.3d at 115-16.

               Viewed against this backdrop, there is good reason to

hold the appellant to the consequences of his waiver.         His claim

is dubious;2 it is focused on the idiosyncratic circumstances of

his own situation; it implicates no matters of significant public

concern; and it does not rest upon any intervening change in the

law.       Moreover, waiving a challenge to his career offender status

provided the appellant with a substantial benefit at sentencing:

it deterred the government from its quest for a much more onerous

guideline sentencing range.      Allowing the appellant to reverse his

field and belatedly attack his career offender designation would

unfairly prejudice the government.         Where, as here, a party makes

a strategic choice to relinquish a known claim in exchange for a

perceived advantage and the trial court acts upon that waiver,




       2
       It is not at all clear that the district court was wrong to
classify each of the three enumerated convictions as predicate
controlled substance convictions under the career offender
provision. Even now, the appellant does not challenge one of the
predicates (the 2013 Massachusetts drug-distribution conviction),
and his challenge to the others is bereft of any controlling or
convincing authority in support of his position. His principal
plaint asks us to apply the analysis used in Harbin v. Sessions,
860 F.3d 58, 63-65 (2d Cir. 2017), to predicate-offense convictions
under Massachusetts and New Hampshire law, respectively. Harbin,
however, was decided before the appellant was sentenced and
embodies an analysis particularized to the structure of a New York
statute — a structure that is plainly distinct from that of the
Massachusetts and New Hampshire statutes upon which the
appellant's earlier convictions rest.


                                  - 12 -
appellate judges should be reluctant to allow the waiving party a

second bite at the cherry.     Nothing in the record of this case

suffices to overcome that reluctance.

            That ends this aspect of the matter.   Concluding, as we

do, that the equities preponderate heavily in favor of enforcing

— not excusing — the waiver, we decline the appellant's invitation

to relieve him of the consequences of his own admissions.

III. CONCLUSION

            We need go no further.   Waived claims are unreviewable,

see Rodriguez, 311 F.3d at 437, and the glove, fitting, must be

worn.   Accordingly, the appellant's sentence is



Affirmed.




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