          United States Court of Appeals
                     For the First Circuit


No. 15-1312

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     JEFFREY DELGADO-LÓPEZ,

                      Defendant, Appellant.


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

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


                             Before

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


     Linda Backiel 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.


                       September 21, 2016
             LYNCH, Circuit Judge. Charged with being an armed member

of   a    drug-dealing   conspiracy,    Jeffrey   Delgado-López   pleaded

guilty.     The district court accepted Delgado-López's plea and

sentenced him to 33 months in prison for the drug count of the

indictment, as well as 60 consecutive months for the accompanying

weapons count.    Delgado-López did not attempt to withdraw his plea

before the district court.

             Delgado-López now seeks to vacate both his guilty plea

and his sentence.    He argues that we must vacate his plea on Count

Six, the weapons charge, because it was neither "knowing" nor

rooted in a factual basis. He also asserts that the district court

erred by augmenting his Guidelines sentencing range on a mistaken

belief that Delgado-López was on probation for a separate offense

when he committed the crimes at issue here.         Finding no error on

either score, we affirm.

                                   I.

             Delgado-López was indicted on April 23, 2014, as one of

48 defendants who had allegedly conspired to sell heroin, cocaine,

and marijuana at public-housing projects in Mayagüez, Puerto Rico.

The government agreed to abandon Counts Two through Five of the

indictment if Delgado-López would agree, in exchange, to plead

guilty to Count One, which charged him with participating in the

conspiracy to possess illegal drugs with intent to distribute, see

21 U.S.C. §§ 841(a)(1), 846, 860, and Count Six, which charged him


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with using or carrying a firearm in furtherance of the conspiracy,

see 18 U.S.C. §§ 2, 924(c)(1)(A).

             Delgado-López took the deal.               On October 29, 2014, at

his change-of-plea hearing, he stated that he was competent to

plead, felt satisfied with his attorney, understood that he was

waiving his constitutional right to a trial, and understood the

nature and consequences of each charge to which he was pleading

guilty.     With respect to the weapons count, he told the district

judge that he understood the charge but that the underlying

allegation -- that he had used or carried a weapon -- was "a lie."

The judge then explained that, "[w]hether [the allegation was]

completely       true   or    not     completely      true,"       Delgado-López   was

choosing    to    plead      guilty    to    avoid    the    possibility    that   the

government had enough evidence to prove the weapons charge at

trial -- in which case, as the judge had explained earlier,

Delgado-López       would      likely       receive    a     considerably     harsher

sentence.    Delgado-López confirmed that he understood that choice,

that his attorney had explained the situation to him, and that he

wanted to go forward with the plea.

             Sentencing took place months later on February 12, 2015.

Delgado-López       did      not    object    in     court    to    the   Presentence

Investigation Report ("PSR"), which contained, in pertinent part,

two additional criminal-history points in the calculation of his

Guidelines range for participating in the conspiracy while he was


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on probation.   See U.S.S.G. § 4A1.1(d).        That enhancement moved

Delgado-López from Criminal History Category I to Category II,

thereby shifting his Guidelines range for Count One upward from

30-37 months to 33-41 months.    See id. ch. 5, pt. A.       The district

court chose to impose a 33-month sentence for Count One, at the

bottom of the agreed-upon Guidelines range, as well as a mandatory-

minimum   60-month   sentence   for    Count   Six.    See    18   U.S.C.

§ 924(c)(1)(A)(i).

          This timely appeal under 28 U.S.C. § 1291 followed.

                                 II.

           Delgado-López failed to object to either of the two

purported errors he now identifies. So he faces the "heavy burden"

of plain-error review and must prove not only a clear error but

also that the error "affected [his] substantial rights [and]

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings."   United States v. Ramos-Mejía, 721 F.3d

12, 14 (1st Cir. 2013) (quoting United States v. Duarte, 246 F.3d

56, 60 (1st Cir. 2001)).    He cannot meet this burden.

A.   Guilty Plea

          Delgado-López first claims that his guilty plea was not

"knowing" with respect to Count Six.     At the outset, we agree with

Delgado-López that the appeal waiver in his plea agreement does

not bar this claim.    "After all, if a plea is invalid, the plea

agreement (and, thus, the waiver provision contained within it)


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disintegrates."       Id.     But we need not dwell further on a moot

point.       We find no error, much less plain error,1 in the district

court's decision to accept Delgado-López's plea. See, e.g., United

States v. Chambers, 710 F.3d 23, 27, 29 (1st Cir. 2013) (bypassing

a similar waiver provision to reach, and reject, defendant's merits

claim of involuntariness).

               District courts must ensure that a defendant understands

the nature of the charges against him before accepting his guilty

plea.       Fed. R. Crim. P. 11(b)(1)(G).    A standard Rule 11 colloquy

generally suffices.         See, e.g., Ramos-Mejía, 721 F.3d at 15 ("[A]

district court [ordinarily may] 'ascertain that a defendant is

aware of the nature of the charge against him by reading the charge

in the indictment to the defendant and obtaining his competent

acknowledgment that he understands the charge.'" (quoting United

States v. Delgado-Hernández, 420 F.3d 16, 26 (1st Cir. 2005))).

               Having reviewed the transcript of Delgado-López's Rule

11 hearing, we are satisfied that the district court met these

standards.       The judge not only allowed but "beg[ged]" Delgado-

López to confer with his lawyer until he understood the plea


        1 Because accepting the plea was not error, we need not
consider the additional hurdles that plain-error review places in
Delgado-López's path. For example, even if he could identify a
"clear or obvious" error, he would still need to show "a reasonable
probability that, but for the error, he might not have pled
guilty." United States v. Urbina-Robles, 817 F.3d 838, 842 (1st
Cir. 2016).   It is clear that Delgado-López would have faced a
much harsher sentence if he had been convicted after a trial.


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agreement, including the disputed charge under § 924(c)(1)(A) for

using or carrying a weapon.           The judge then paused the hearing,

telling Delgado-López and his attorney to take as much time as

they needed to discuss the proposed deal.                  When Delgado-López

returned to court, over three hours later, the judge carefully

reiterated the mechanics, elements, and consequences of the plea

agreement -- including an accurate synopsis of § 924(c)(1)(A).

           Delgado-López now argues, belatedly, that intellectual

and educational limitations impaired his understanding.                         That

contention is not adequately supported by the record.                    The judge

explained each point to Delgado-López until he said he understood,

and we see this case as one in which "the circumstances attendant

to the charged crime were straightforward . . . [and] a reading of

the charge sufficed."         Ramos-Mejía, 721 F.3d at 15.

           Finally, Delgado-López contends that the record fails to

establish a factual basis for the weapons charge.                    He points to

his   statement      during   the   change-of-plea       hearing    --   that   the

allegation that he had been an armed seller was "a lie" -- and

highlights the circumstantial nature of the government's evidence.

However, the government's "necessary showing" to overcome this

argument "is fairly modest," id. at 16, and the record contains an

adequate factual basis for the plea on Count Six.                  The government

was prepared to present evidence that a marshal witnessed a man

throwing   a   gun    from    the   window    of   an   apartment,    whose     only


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occupants were Delgado-López and his wife.     And two of Delgado-

López's alleged cooperators were prepared to testify about his

guilt on that count.   Given that the government's burden was "only

[to] show a rational basis in fact for the defendant's guilt,"

id., there was no error in the district court's decision to accept

these allegations as sufficient.

B.   Sentence

          We also find no error, plain or otherwise, in the

calculation of Delgado-López's Guidelines range.2 Section 4A1.1(d)

imposes a two-point enhancement in a Criminal History Category

calculation "if the defendant committed the instant offense while

under any criminal justice sentence, including probation . . . ."

          It has long been clear that "a sentencing court may

consider facts contained in the [PSR] as reliable evidence," in

the absence of any defense objection.   United States v. Cruz, 120

F.3d 1, 2 (1st Cir. 1997) (en banc); accord United States v.

Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010); United States

v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010). The district

court was entitled to rely on the unobjected-to finding of the


     2    We do not decide whether Delgado-López has waived, and
not merely forfeited, this claim. But "[t]here is a powerful case
for waiver here," because "a defendant who eschews a warrantable
objection to a conclusion reached in a presentence report lulls
both the prosecution and the sentencing court into what will prove
to be a false sense of security if he is later allowed to do an
about-face." United States v. Turbides-Leonardo, 468 F.3d 34, 38
(1st Cir. 2006).


                               - 7 -
probation officer that Delgado-López had still been on probation

for prior offenses when he joined the drug conspiracy.         And even

if we were persuaded that the two-point enhancement constituted

clear   error,   we   would   remain   unconvinced   that   there    is   a

"reasonable probability that the trial court, but for the error,

would have imposed a different, more favorable sentence."           United

States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc).

Delgado-López's 33-month sentence on Count One is squarely within

the lower Guidelines range to which he says he was entitled.

                                  III.

           For the foregoing reasons, we reject Delgado-López's

claims of error and affirm his conviction and sentence.




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