           United States Court of Appeals
                       For the First Circuit

No. 12-1897

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

               EFRAIN SANTIAGO-BURGOS, a/k/a Miyagui,

                       Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Carmen Consuelo Cerezo, U.S. District Judge]



                               Before

                      Howard, Circuit Judge,
                    Souter*, Associate Justice,
                     and Stahl, Circuit Judge.


     Heather Golias, with whom Law Office of Heather Golias was on
brief, for appellant.
     Michael C. Bagge, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Veléz, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, and Thomas F. Klumper,
Assistant United States Attorney, were on brief, for appellee.




     *
        Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
April 21, 2014
          HOWARD, Circuit Judge.             Efrain Santiago-Burgos appeals

the ninety-seven month prison sentence imposed by the district

court after he pled guilty to a drug conspiracy charge.                   Santiago

argues that the district court made a prejudicial Sentencing

Guideline calculation error and improperly imposed his sentence

consecutive    to   one   he    received     as   a   result    of   a   conviction

tangentially    related    to    the   relevant       drug     conspiracy.     The

government concedes the Guideline miscalculation point but disputes

the consecutive sentence error.            It also argues that any error is

nevertheless for naught because Santiago's plea agreement included

a waiver of appeal.       Santiago disputes the applicability of the

waiver.   We hold as follows:          the waiver does not bar Santiago's

appeal; the consecutive sentence was not improper; the Guideline

error requires remand for resentencing.

                                       I.

          In August 2008, Santiago and dozens of other people were

indicted on multiple drug conspiracy counts.                      The indictment

alleged, inter alia, that Santiago served as a "runner," whose

duties included providing drugs to sellers and collecting drug

proceeds from them.       Previously, in July 2006 -- a time during

which the drug conspiracy was alleged to be active -- Santiago was

sentenced to a short prison term and three years of supervised

release for assaulting a Drug Enforcement Agency informant.                    The




                                       -3-
supervised release eventually was revoked as a result of the

current charges.

           In April 2011, Santiago pled guilty to one count of the

present indictment, which charged him with conspiracy to possess

with intent to distribute more than five kilograms of cocaine,

fifty grams of cocaine base, one kilogram of heroin, 100 kilograms

of marijuana, and/or Oxycodone and Xanax, all within 1000 feet of

a school or public housing complex.1        The government and Santiago

executed a plea agreement which stipulated that Santiago would be

accountable for at least two but less than 3.5 kilograms of

cocaine.    The parties further agreed that Santiago's Sentencing

Guideline calculation would begin with a Base Offense Level ("BOL")

of twenty-eight,2 to be increased by two levels because of the

protected location involved3 and by two more levels for his role in

the offense.4 Finally, if Santiago accepted responsibility for his

crimes,    he   would   receive   a    three-level   deduction.5   These

stipulations yielded an agreed-upon Total Offense Level ("TOL") of

29, a result which is not part of this appeal.




     1
      21 U.S.C. §§ 841(a)(1), 846 and 860.
     2
      U.S.S.G. § 2D1.1(c)(6).
     3
      Id. § 2D1.2(a)(1).
     4
      Id. § 3B1.1(c).
     5
      Id. § 3E1.1.

                                      -4-
            The plea agreement contained no stipulation with respect

to Santiago's Criminal History Category ("CHC"), but the parties

agreed to certain limits on the parties' permissible arguments

about the appropriate sentence.           They agreed that, if Santiago's

CHC was determined to be I, he could ask for a sentence as low as

eighty-seven months or the low end of the applicable Guideline

range,   whichever   was   higher.        The    government,      meanwhile     was

permitted   to   recommend   a    sentence       of    ninety-seven   months     if

Santiago's CHC was I or II.       A CHC of III or higher would result in

a recommendation at the low end of the applicable Guideline range.6

Neither side was permitted to recommend a sentence shorter than

eighty-seven months.

            Especially relevant to this appeal, the plea agreement

contained the following waiver provision:                "The defendant hereby

agrees that if this Honorable Court accepts this Plea Agreement and

sentences     him    according     to      its        terms,    conditions      and

recommendations, defendant waives and surrenders his right to

appeal the judgement [sic] and sentence in this case."

                                     II.

            After    Santiago's     plea     and       before    sentencing,      a

Presentence   Investigation      Report    ("PSR")       was    provided   to   the

district court.      Santiago's CHC is the fulcrum of the parties'


     6
      A CHC of I and TOL 29 yields a sentence range of 87-108
months; the same TOL with a CHC of II yields a 97-121 month range;
a CHC of III produces a 108-135 month range.

                                     -5-
dispute.   The PSR first saddled Santiago with two criminal history

points for his 2006 informant assault conviction.          See U.S.S.G.

§ 4A1.1(b).    Two additional points were added because the instant

offense was committed, in part, while Santiago was under a term of

supervised release for the informant assault conviction.               Id.

§ 4A1.1(d). The four criminal history points yielded a CHC of III.

           The district court sustained Santiago's objection to the

two   criminal   history   points    for   the   prior   conviction,   id.

§ 4A1.1(b), on the basis that the assault on the informant was an

overt act within the conspiracy.           See Id. § 4A1.2 cmt. n.1

(excluding from consideration of criminal history sentences that

are for conduct that is part of the instant offense).         Siding with

the government, the district court denied Santiago's objection to

the two additional points related to his commission of the instant

offense while on supervised release.       See Id. § 4A1.1(d).    Halving

the total of points from four to two dropped Santiago into CHC II,

resulting in a sentencing range of 97-121 months.           The district

court imposed a sentence at the bottom end of that range and

ordered it to run consecutively to the thirteen-month sentence he

received on the informant assault case after his supervised release

was revoked.

                                    III.

           On appeal, Santiago challenges the two criminal history

points assessed under U.S.S.G. § 4A1.1(d) and the district court's


                                    -6-
imposition of a consecutive, rather than a concurrent, sentence.

For its part, the government concedes the criminal history error,

observing that the same rationale that the district court employed

to deduct two criminal history points under section 4A1.1(b) --

that the assault was an overt act within the conspiracy to which

Santiago was pleading guilty -- should apply to the two points

assessed under section 4A1.1(d). We accept this concession and say

no more about the issue.     The government additionally maintains

that there was no error in the consecutive sentence.             But the

government further argues that, regardless of any error below, the

appellate   waiver   provision   of   the   plea   agreement   altogether

precludes Santiago's appeal.     We turn first to the waiver.

            The government argues that even though the court erred in

its Guideline calculation by sentencing Santiago according to CHC

II (two points) rather than CHC I (zero points), the sentence

nevertheless met the waiver's requirement that it fall within "[the

Agreement's] terms, conditions and recommendations" because the

agreement allowed a ninety-seven month sentence for either CHC I or

CHC II.   We disagree.

            A waiver of appeal is valid if it was knowingly and

voluntarily executed, and if enforcement would not result in a

miscarriage of justice if enforced. Sotirion v. United States, 617

F.3d 27, 33 (1st Cir. 2010); United States v. Teeter, 257 F.3d 14,

24-25 (1st Cir. 2001). But "[e]ven a knowing and voluntary appeal


                                  -7-
waiver only precludes appeals that fall within its scope."   United

States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007); see also United

States v. Okoye, 731 F.3d 46, 49 (1st Cir. 2013), cert. denied, 134

S. Ct. 1329 (2014); United States v. Acosta-Roman, 549 F.3d 1, 3

(1st Cir. 2008).

          Here, Santiago does not claim that the waiver was not

knowing and voluntary.   But we still must determine whether this

appeal falls within the waiver's scope.   To do so, we rely on basic

contract interpretation principles, construing the agreement where

possible to give effect to every term and phrase, Okoye, 731 F.3d

at 49, and construing any ambiguities in favor of allowing the

appeal to proceed, id. (citing United States v. Fernández-Cabrera,

625 F.3d 48, 51 (1st Cir. 2010)).

          The government argues that Santiago's ninety-seven month

sentence was expressly contemplated by the plea agreement, and thus

his claim falls well within the waiver.     We see it differently,

however. While the agreement certainly did not entitle Santiago to

any particular sentence, and a ninety-seven month sentence was

possible under either CHC I (where it would be in the middle of the

sentencing range) or II (where it would be at the low end of the

sentencing range), the district court's CHC error deprived Santiago

of an express right that he otherwise did possess under the

Agreement -- to argue for an eighty-seven month sentence.    Because

the agreement limited Santiago's request to the greater of eighty-


                               -8-
seven months or the lower end of the applicable guideline range,

once the district court erroneously settled on CHC II (with a low-

end sentence of ninety-seven months), Santiago was deprived of one

of the benefits of the plea bargain -- the possibility of a

sentence at the low end of the correct guideline range. See United

States v. Saxena, 229 F.3d 1, 6 (1st Cir. 2000) (observing that a

defendant who fulfills his part of a plea agreement is "entitled to

the benefit of his bargain").

            Here,      Santiago's    sentence        recommendation    was    highly

dependent on the CHC.          Specifically, he could argue for an eighty-

seven month sentence "if [his] Criminal History Category is I." In

fact, his CHC was I (or at least should have been), and he was not

permitted   to    so    argue.      We   therefore      find   that    he    was   not

"sentence[d]      .    .   .   according       to    [the   agreement's]      terms,

conditions,      and   recommendations"        and    the   waiver    is    therefore

inapplicable to this appeal. Cf. McCoy, 508 F.3d at 77-78 (finding

waiver inapplicable where district court misapplied Guideline and

waiver applied to sentence "within the Guideline range"). With the

error conceded, we need not resolve the merits of Santiago's CHC

argument and hold that Santiago must be re-sentenced applying CHC

I.7


      7
      While we have previously upheld the validity of identical
waivers, we have also suggested that, given the frequency of
appeals involving waivers, "it would be better practice" if waiver
provisions made specific reference "to any terms and conditions of
the plea agreement that are not intended" by the parties to be

                                         -9-
            We need less discussion to resolve the waiver issue with

respect to the consecutive sentence.          The plea agreement made no

reference   whatsoever    as   to   whether   the   sentence   should   run

consecutively to the previous one.         We have previously found that

a similar waiver did not bar an appeal of a consecutive sentence,

and we so hold here.     See United States v. Maldonado-Escarfullery,

689 F.3d 94, 97 n.2 (1st Cir. 2012).

            When we turn to the substance of the argument, however,

we find that Santiago's victory is a pyrrhic one.          In some cases

federal sentences imposed on a defendant subject to an undischarged

prior sentence must be consecutive, see U.S.S.G. § 5G1.3(a); in

other cases, the sentence must be concurrent, with credit for time

served, see id. § 5G1.3(b); and in still other cases, the matter is

left to the discretion of the sentencing judge, see id. § 5G1.3(c).

United States v. Dunbar, 660 F.3d 54, 56 (1st Cir. 2011) (per

curiam).     Here, the parties agree that subsection (a), which

applies to defendants serving an undischarged term of imprisonment,

is inapposite here.      So we turn our attention to subsections (b)

and (c).    Santiago first argues that the district court erred by

not applying U.S.S.G. § 5G1.3(b), which would have mandated that

his sentences run concurrently.       He concedes that he did not raise

this issue before the district court and that, therefore, we review


within the waiver's scope. United States v. Ortiz-García, 665 F.3d
279, 284 (1st Cir. 2011) (citing United States v. Acosta-Roman, 549
F.3d 1, 4 n.3 (1st Cir. 2008)).

                                    -10-
it only for plain error.        Success on appeal requires Santiago to

demonstrate:      1) an error; 2) that was plain or obvious and; and

which 3) affected his substantial rights; and also 4) seriously

impaired the fairness, integrity, or public reputation of the

judicial proceedings.       United States v. Díaz-Maldonado, 727 F.3d

130, 142 (1st Cir. 2013).

           To receive a concurrent sentence under Section 5G1.3(b),

Santiago must demonstrate both that his prior sentence is based on

conduct that is "relevant conduct" under U.S.S.G. §§ 1B1.3(a)(1),

(2) or (3), and that such relevant conduct was the basis for an

increase in the offense level in this case.               United States v.

Carrasco-De-Jesús, 589 F.3d 22, 27 (1st Cir. 2009).                  Here the

dispute centers on the second element, whether the assault on the

DEA   informant    was   part   of   the   two-level,   role-in-the-offense

increase for being an "organizer, leader, manager, or supervisor"

in the conspiracy of conviction.           U.S.S.G.   § 3B1.1(c).

           Santiago begins by correctly noting that his offense-

level adjustment was due to his role as a "runner" responsible for

supervising street-level dealers.           His argument jumps the tracks,

however, when he tries to link his runner role to violence of the

type that led to his informant assault conviction.                  None of a

runner's responsibilities described in the record include violence.

Santiago tries to elide this gap by noting that the record reflects

that "some co-conspirators would use violence" to achieve their


                                     -11-
goals. However, Santiago does not direct us to any record evidence

to show that he was part of the group of violence-using co-

conspirators.           Accordingly, we cannot find any error, much less

plain error, in not applying section 5G1.3(b)

               Santiago argues in the alternative that, even if U.S.S.G.

§ 5G1.3(c) properly applied, the district court erred in not

exercising its discretion to run the sentences concurrently.

However, his reliance on U.S.S.G. § 5G1.3(c) fares no better.8                  In

cases       that   do   not   fit   within   either   subsection   (a)   or   (b),

subsection (c) allows the sentencing judge to impose sentences

consecutively, concurrently, or partially concurrently to achieve

a reasonable punishment for the instant offense.               Drilling a bit

deeper, Application Note 3(C) states that "[s]ubsection (c) applies

in cases in which the defendant was on federal or state . . .

supervised release at the time of the instant offense and has had

such        . . . supervised release revoked."         U.S.S.G. § 5G1.3, cmt.

n.3(C). The crowning blow to Santiago's argument follows, though:

"[T]he Commission recommends that the sentence for the instant

offense be imposed consecutively to the sentence imposed for the


        8
      Despite Santiago's entreaties to the contrary, this argument
was not raised below. While his brief points us to several spots
in the record where he asserted that the conduct underlying his
revocation was "relevant," in the sentencing vernacular, to the
instant conviction, those references were all made in connection
with his objection to the CHC calculation, not the consecutive
sentence issue. A single remark at sentencing that all the conduct
is "part of the same . . . conspiracy, and therefore that the
sentence should be concurrent" does not change our view.

                                         -12-
revocation."     Id.   In harmony with this note, we have held in a

similar circumstance that consecutive sentences are "the default

position."    United States v. Parks, 698 F.3d 1, 8 (1st Cir. 2012)

(affirming consecutive sentence imposed on defendant who was on

probation at time of conviction, even though both the conviction

and probation violation arose from the same course of conduct),

cert. denied, 133 S. Ct. 2021 (2013). Against this backdrop, there

was no error in the district court's decision to impose the

sentence in this case consecutively to the revocation sentence.

                                  IV.

             Santiago's ninety-seven month sentence is vacated and

this case is remanded to the district court for resentencing in

accordance with this opinion.      The district court's decision to

impose the sentence in this case consecutively to Santiago's

earlier sentence is affirmed.




                                 -13-
