          United States Court of Appeals
                      For the First Circuit


No. 16-1452

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      RAFAEL TANCO-PIZARRO,

                      Defendant, Appellant.


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

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


                              Before

                   Lynch, Stahl, and Thompson,
                         Circuit Judges.


     Kendys Pimentel Soto and Kendys Pimentel Soto Law Office, on
brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate
Division, and John A. Mathews II, Assistant U.S. Attorney, on brief
for appellee.


                         October 6, 2017
           STAHL, Circuit Judge.

           Appellant Rafael Tanco-Pizarro ("Tanco-Pizarro") seeks

review of his guilty plea and his resulting sentence for being a

felon in possession of a firearm.       The district court accepted his

guilty plea and subsequently sentenced him to 57 months in prison

and three years of supervised release.          That sentence was to be

served consecutive to his earlier sentence for violating the terms

of his supervised release.

           Here,    Tanco-Pizarro    claims   his   guilty   plea    was    not

knowing and voluntary, that the government breached the plea

agreement it entered into with him, and that the court violated

his right to allocution.     After careful review, we affirm.

           I.      Factual Background and Prior Proceedings

           In 2006, Tanco-Pizarro was arrested and convicted of

using a firearm in connection with a drug crime and was sentenced

to 60 months in prison followed by five years of supervised

release.   On September 19, 2015, during his period of supervised

release,   police     officers   discovered    Tanco-Pizarro        after   an

automobile accident in possession of an AK-47 type rifle, a Glock

pistol, and ammunition.     Subsequently, Tanco-Pizarro was sentenced

to 60 months in prison for violating the terms of his supervised

release.   Thereafter, on December 21, 2015, Tanco-Pizarro pled

guilty pursuant to a plea agreement to possession of a firearm by




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a convicted felon in violation of 18 U.S.C. § 922(g)(1) and 18

U.S.C. § 924(a)(2).

              The   relevant       provisions       of     Tanco-Pizarro's       plea

agreement are the following.                Paragraph 7 stipulates a total

adjusted    offense   level       of   19   and    sets    forth     the   applicable

guideline      sentencing      recommendations            for   criminal      history

categories I to III.         Paragraph 8 states that "[t]he parties do

not stipulate as to any Criminal History Category for defendant."

(Emphasis in original).           Paragraph 9 reads:

              The parties agree that the defendant may
              request a sentence at the low end of the
              determined    applicable    guideline    range
              stipulated in paragraph 7 of this Plea
              Agreement as to Count One. The government may
              argue for any sentence at the upper end of the
              applicable guideline range stipulated in
              paragraph 7 of this Plea Agreement as to Count
              One.

Paragraph 10 provides that Tanco-Pizarro waives his right to appeal

so long as he "is sentenced in accordance with the terms and

conditions set forth in the Sentence Recommendation provisions of

this Plea Agreement."

              During the change of plea hearing on December 21, 2015,

the court informed Tanco-Pizarro that the range of sentences

discussed in the plea agreement was only a recommendation and that

the   court    retained     the    ultimate       authority     to   determine    his

sentence, to which the defendant replied that he understood.                      The

court also discussed the waiver of appeal provision in the plea


                                       - 3 -
agreement, and Tanco-Pizarro responded that he understood that he

was waiving his right of appeal.                Finally, when the court asked

whether      "[t]his   is   the    entire   Plea   Agreement,"   Tanco-Pizarro

agreed that nothing else had been promised to him.                     Although

defense counsel requested a sentence that would run concurrently

with    Tanco-Pizarro's           revocation     sentence,   defense    counsel

explained that Tanco-Pizarro knew it was up to the court to

determine his ultimate sentence.

              Tanco-Pizarro's sentencing hearing was held on April 6,

2016.       The presentence report calculated his total offense level

as 19 and his criminal history category as IV, resulting in a

guideline range of 46 to 57 months.                  The court asked whether

defense counsel had any allocution he wanted to make and stated

that "of course [Tanco-Pizarro] can address the Court."                  After

defense counsel argued for a sentence of 46 months, the court twice

asked Tanco-Pizarro whether he would like to say something.               Both

times, Tanco-Pizarro responded "No."

              The court sentenced Tanco-Pizarro to 57 months in prison

to run consecutive to his sentence for the revocation of his

supervised release.         This timely appeal followed.

                                  II.   Discussion

       A.     Knowing and Voluntary Plea

              Tanco-Pizarro claims his guilty plea was neither knowing

nor voluntary because defense counsel failed to follow through on


                                        - 4 -
his promise, allegedly made in open court, to argue for a sentence

concurrent    with   Tanco-Pizarro's   revocation   sentence.   In   the

alternative, Tanco-Pizarro argues his counsel coerced him into

pleading guilty by falsely leading him to believe there was a

reasonable chance he would receive a concurrent sentence.1

             Because Tanco-Pizarro raises these issues for the first

time on appeal, the standard of review is for plain error.           See

United States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v.

Ocasio-Cancel, 727 F.3d 85, 89 (1st Cir. 2013). Plain error review

"entails four showings: (1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."       United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Tanco-Pizarro's

arguments fail at the first step because he cannot show error.

             "A defendant's guilty plea must be voluntary, knowing,

and intelligent."     Ocasio-Cancel, 727 F.3d at 89.     A guilty plea



     1 We recognize that Tanco-Pizarro's plea agreement contains a
waiver of appeal provision and that, as we will discuss later,
"[s]uch a provision forecloses appellate review of many claims of
error."   United States v. Chambers, 710 F.3d 23, 27 (1st Cir.
2013). "But where, as here, a defendant enters a guilty plea and
agrees to waive his right to appeal . . . a reviewing court must
'address the merits of [his] appeal because his claim of
involuntariness, if successful, would invalidate both the plea
itself and the waiver of his right to appeal.'" Id. (alteration
in original) (quoting United States v. Santiago Miranda, 654 F.3d
130, 136 (1st Cir. 2011)).


                                 - 5 -
entered by a defendant "fully aware of the direct consequences

. . . must stand unless induced by threats . . . , misrepresentation

(including unfulfilled or unfulfillable promises), or perhaps by

promises that are by their nature improper as having no proper

relationship to the prosecutor's business."                    Brady v. United

States, 397 U.S. 742, 755 (1970).

           First,     the    record    does    not   support    Tanco-Pizarro's

contention that his counsel promised, in open court, to argue

forcefully for a concurrent sentence.                 At the change of plea

hearing, defense counsel stated that Tanco-Pizarro wanted him to

advocate for a concurrent sentence.             However, defense counsel did

not promise to raise these arguments at the sentencing hearing.

Rather, defense counsel told the court it was "something that

[Tanco-Pizarro] and I will discuss before sentencing."                      Such

language does not rise to the level of a promise.                     See United

States v. Dawn, 842 F.3d 3, 6 (1st Cir. 2016), cert. denied, 137

S. Ct. 1361 (2017) (defense counsel's statement that he was

"looking into some of [defendant's] prior convictions which have

a significant impact on the Guidelines" was not a promise to

collaterally    attack      those   convictions).       In     addition,   Tanco-

Pizarro told the court that no one had promised him anything other

than what was outlined in the plea agreement.                See Bemis v. United

States,   30   F.3d   220,    222     (1st    Cir.   1994)    ("A   defendant   is




                                       - 6 -
ordinarily bound by his or her representations in court disclaiming

the existence of additional promises.").

          Second,   despite   Tanco-Pizarro's   assertions   to   the

contrary, a concurrent sentence was a possibility.   While U.S.S.G.

§ 5G1.3(d), Application Note 4(C) recommends that "any sentence

for the instant offense be imposed consecutively to the sentence

imposed for the revocation," U.S.S.G. § 5G1.3(d) unambiguously

states that "[i]n any other case involving an undischarged term of

imprisonment, the sentence for the instant offense may be imposed

to run concurrently, partially concurrently, or consecutively to

the prior undischarged term of imprisonment."     Moreover, even if

the Sentencing Guidelines had provided for a consecutive sentence,

the court still had the authority to depart from the guidelines

and impose a concurrent sentence.   See United States v. Parks, 698

F.3d 1, 8 (1st Cir. 2012).

          Finally, we find nothing else in the colloquy to cast

doubt on the knowing and voluntary nature of Tanco-Pizarro's plea.

The court verified his competency, explained the rights he was

waiving, and reviewed the evidence and charges against him.       The

court highlighted that the plea agreement was not binding on the

court and verified that the plea agreement contained all the

promises made to Tanco-Pizarro.     Under these circumstances, we

find no plain error and we find Tanco-Pizarro's plea was knowing

and voluntary.


                               - 7 -
      B.   Waiver    of   Appeal    and    Purported   Breach    of   the    Plea
      Agreement

           Next, Tanco-Pizarro contends the government breached the

plea agreement by recommending a sentence of 57 months when the

highest sentence contemplated by the agreement was 46 months.

"[W]e construe the terms and conditions in plea agreements in

accordance with traditional principles of contract law."                United

States v. Marchena-Silvestre, 802 F.3d 196, 202 (1st Cir. 2015).

Because "[a] defendant who enters a plea agreement waives a panoply

of constitutional rights . . . we hold prosecutors to 'the most

meticulous standards of both promise and performance.'"                 United

States v. Almonte-Nunez, 771 F.3d 84, 89 (1st Cir. 2014) (quoting

United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002)).

           Having    found   that       Tanco-Pizarro's    guilty     plea    was

knowing and voluntary, we must first determine whether the waiver

of appeal provision in his plea agreement bars consideration of

this claim of error.      We will apply a waiver of appeal provision

"so long as: (1) the written plea agreement clearly delineates the

scope of the waiver; (2) the district court inquired specifically

at the plea hearing about any waiver of appellate rights; and (3)

the   denial   of   the   right    to     appeal   would   not   constitute    a

miscarriage of justice."      United States v. Edelen, 539 F.3d 83, 85

(1st Cir. 2008) (citing United States v. Teeter, 257 F.3d 14, 25

(1st Cir. 2001)).     "Of course, a waiver of appeal precludes only



                                    - 8 -
those appeals that fall within its scope."       Almonte-Nunez, 771

F.3d at 88.

          Paragraph 10 provides that Tanco-Pizarro waives his

right to appeal so long as he "is sentenced in accordance with the

terms and conditions set forth in the Sentence Recommendation."

Paragraph 9 permits the government to argue for "any sentence at

the upper end of the applicable guideline range stipulated in

paragraph 7."   Paragraph 7 calculates a total offense level of 19,

but lists the applicable guideline ranges only for criminal history

categories I to III.

          The district court expressed concern over the apparent

lack of congruity between the criminal history categories listed

in Paragraph 7 and the ultimate criminal history category of IV

that the court found applied to the defendant:

          THE COURT: . . . [T]he waiver considered a
          category of three, correct?

          DEFENSE COUNSEL: No, Judge.

          THE GOVERNMENT: No.

          DEFENSE COUNSEL: The waiver says if you
          sentence him within the applicable guideline
          range as determined by the Court, so he
          waives.

          THE COURT: Is it your understanding that the
          waiver is still applicable in this case?

          DEFENSE COUNSEL: Yes, sir.




                                - 9 -
Reading the waiver's scope in this manner bars consideration of

Tanco-Pizarro's claims.   Tanco-Pizarro was sentenced to 57 months,

a sentence within the applicable guideline range for an offender

with a total offense level of 19, which was stipulated to in

Paragraph 7, and a criminal history category of IV, which was

properly determined by the court.      His sentence is therefore in

accord with the terms and conditions of the plea agreement's

sentencing recommendation.

          It is true that defense counsel's explanation of the

waiver does not match Paragraph 9's exact words.        Paragraph 9

permits the government to argue for "any sentence at the upper end

of the applicable guideline range stipulated in paragraph 7."

Abandoning his counsel's earlier understanding of Paragraph 9,

Tanco-Pizarro now reads the phrase "stipulated in paragraph 7" to

limit the guideline ranges solely to those listed in paragraph 7.

          We have previously confronted similar language in plea

agreements.   In Marchena-Silvestre, the plea agreement allowed the

parties to argue for sentences based on the "applicable guideline

range" and included a chart containing sentencing ranges for all

possible criminal history categories.      802 F.3d at 202-03.    In

that context, we indicated that one would "presume[] that the

undefined term 'applicable guidelines range' would refer precisely

to the guideline settlement ranges set forth in the immediately

prior section of the Agreement."    Id. at 203.   On the other hand,


                              - 10 -
we noted that the plea agreement's phrasing was "awkward."   Id. at

205.

           Here, we again face an awkwardly written plea agreement

that can be read in conflicting ways.     But, even if we were to

adopt Tanco-Pizarro's new interpretation of Paragraph 9 and find

the waiver of appeal provision not to apply, we would still affirm

his sentence.     When a defendant fails to object to an alleged

breach of a plea agreement, the standard of review is plain error.

See Puckett v. United States, 556 U.S. 129, 143 (2009).      "[T]he

second prong of plain-error review . . . will often have some

'bite' in plea-agreement cases.   Not all breaches will be clear or

obvious.   Plea agreements are not always models of draftsmanship,

so the scope of the Government's commitments will on occasion be

open to doubt."   Id.

           Under these circumstances, the government did not engage

in a clear or obvious breach of the agreement by recommending a

sentence of 57 months. Paragraph 7 provides the range of sentences

for criminal history categories of I, II, and III only.   However,

Paragraph 8 makes explicit, and states with emphasis, that "[t]he

parties do not stipulate as to any Criminal History Category for

defendant."     Because the agreement did not provide a criminal

history category, the court had to determine the proper category,

and the sentence imposed was appropriate to that category.




                              - 11 -
            Unlike    the   sentence    in    Marchena-Silverstre,     Tanco-

Pizarro's sentence was in accordance with the total offense level

stipulated to in the plea agreement.           The parties agree that the

total offense level of 19 recited in Paragraph 7 of the plea

agreement was correctly calculated.           See Almonte-Nunez, 771 F.3d

at 89 ("[T]he sentence recommendation provisions contemplated a

total offense level of 25 . . . . Thus, for the defendant to have

been sentenced in accordance with the terms of the sentence

recommendation provisions, he would have had to be sentenced within

a GSR derived from an offense level of 25.").            In this situation,

"we cannot find--especially on plain error review--that a fair

reading of the agreement plainly binds the government" to Tanco-

Pizarro's   reading    of   Paragraph    9.     United   States   v.   Marin-

Echeverri, 846 F.3d 473, 478 (1st Cir. 2017).

     C.     Allocution

            Finally, Tanco-Pizarro argues the court failed to offer

him a meaningful chance to allocute.               See Fed. R. Crim. P.

32(i)(4)(A)(ii). We review de novo a sentencing court's compliance

with the right of allocution.      United States v. Rivera-Rodriguez,

617 F.3d 581, 605 (1st Cir. 2010).

            The court asked Tanco-Pizarro directly "[w]ould you like

to say something, sir?"        When Tanco-Pizarro declined, the court

asked "Nothing at all?" and Tanco-Pizarro again responded "No."




                                  - 12 -
Earlier in the hearing, the court also informed Tanco-Pizarro that

"of course he can address the Court."

           Tanco-Pizarro acknowledges that the court provided him

with these invitations to speak, but contends that the "context

and   atmosphere"    surrounding     these   invitations    rendered   them

ineffective.     Shortly before the court asked Tanco-Pizarro whether

he had anything to say, the government informed the court that

Tanco-Pizarro had recently been in a fight with another inmate.

In response, the court stated "I don't think Mr. Tanco claims that

he's a peaceful, law abiding citizen.           He's not claiming that

. . . . He's not claiming that, and he will not."

           The    court   provided   Tanco-Pizarro   with    a   sufficient

opportunity to allocute.       As we have made clear, "[n]either the

Supreme Court nor this court has ever required that a sentencing

court employ a specific set of words to notify a defendant of his

or her right to allocute."     United States v. Pacheco, 727 F.3d 41,

49 (1st Cir. 2013).       Here, the court directly addressed Tanco-

Pizarro and asked him twice whether he had anything to say.            "To

the extent [the defendant] may be arguing that asking whether [he]

had anything to say is not technically an invitation to speak, we

plainly disagree and refuse to go down the semantics rabbit hole."

Id.

           AFFIRMED.




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