      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


Nos. 99-1457
     99-1458
     99-1680

                        UNITED STATES,

                          Appellee,

                              v.

                   EDWIN GUTIERREZ-RENTAS,

                    Defendant, Appellant.


        APPEALS FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Hector M. Laffitte, U.S. District Judge]
        [Hon. Jose Antonio Fuste, U.S. District Judge]
      [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                            Before

                     Stahl, Circuit Judge,
         Coffin and Campbell, Senior Circuit Judges.




     Maria Soledad Ramirez-Becerra on brief for appellant.
     Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Nelson Perez-
Sosa, Assistant United States Attorney, on brief for appellee.
                        February 12, 2001


         Per Curiam. Edwin Gutierrez-Rentas appeals from

concurrent sentences entered following guilty pleas for

three separate drug offenses.         In its brief, the government

asks that the appeals be summarily dismissed.

         I. Background

         The pleas were entered pursuant to written plea

agreements     which    were       essentially       identical        (“the

Agreements”).     The Agreements purported to be pursuant to

Fed.R.Crim.P.     11(e)(1)(C),      but    other    language     in    the

Agreements     suggested    that    they   were     pursuant     to    Rule

11(e)(1)(B).    Consistent with subsection (B), the Agreements

stated that “the Court is not bound by this Plea Agreement,

including but not limited to: the sentencing guidelines

calculations,          stipulations,            and/or         sentence

recommendations.” ¶ 7.

         Consistent        with    subsection      (C),   however,     the

Agreements provided that the appropriate prison sentence

within the applicable guideline range was 144 months.                    In

arriving at that sentence, the parties agreed upon a base

offense level of 34, which would be decreased by three

levels for acceptance of responsibility and that

         [b]ased on the defendant’s role in the
         offense as a manager the base offense
            level shall       be   increased      by    Two   (2)
            levels.

The Agreements, ¶ 8(d).            The district court in each case

construed the Agreements as pursuant to Rule 11(e)(1)(C),

accepted    the   Agreements       and    sentenced     Gutierrez   to   144

months in prison, the agreed upon sentence.

            At sentencing and in his sentencing memoranda,

Gutierrez argued in all three cases that he should receive

a   lower   sentence   than    the       144   months   specified   in   the

Agreements because there was not a factual basis to support

the agreed-upon two-level enhancement for his managerial

role in the offense.          He argued that the Agreements were

ambiguous with respect to whether they were entered pursuant

to Rule 11(e)(1)(B) or (C) and, therefore, the district

court could accept the Agreements but modify the sentence.

            In his consolidated appeal, Gutierrez does not

repeat the argument that the Agreements should have been

construed as pursuant to Rule 11(e)(1)(B).                But he persists

in the other half of his argument: that he should not have

received the two-level enhancement that he agreed to because

there is insufficient evidentiary support for a finding that

he was a manager within the meaning of U.S.S.G. § 3B1.1(c).

The government responds by arguing in its brief that because

the Agreements were entered pursuant to Rule 11(e)(1)(C),


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their terms were binding upon the sentencing courts once the

Agreements     were   accepted.            Therefore,          the   government

asserts, the sentencing courts had no authority to modify

the   agreed   upon    sentences        and      the       appeals    should   be

summarily dismissed.       We agree with the government that the

sentences in all three cases should be affirmed, although

the   different     circumstances       in    the      three    cases    require

separate explanations of our disposition in each case.

            II. Discussion

            As an initial matter, appellant’s failure to argue

on appeal that the district court erred in construing the

Agreements as pursuant to Rule 11(e)(1)(C) provides grounds

for affirming the sentences. Where a plea agreement is

entered pursuant to subsection (C), the district court’s

only options are to accept or reject the plea under the

terms agreed to by the parties.                  The court may not accept

the plea and then “unilaterally” impose a more lenient

sentence    than    that     specified           in    a    Rule     11(e)(1)(C)

agreement. See United States v. Moure-Ortiz, 184 F.3d 1, 3 -

4 (1st Cir. 1999).     “After the district court provisionally

accepted the agreement, its only recourse was to reject the

agreement      if     it     found         the        negotiated        sentence

unsatisfactory.”      Id.,    at   3;      see    also      United    States   v.

Barnes, 83 F.3d 934, 941 (7th Cir. 1996) (“The district court

                                     -4-
does not have the power to retain the plea and discard the

agreed-upon sentence, even if the sentence departs from what

the guidelines might prescribe”).

               Appellant has never sought to withdraw his guilty

pleas.    Instead, he seeks only modification of the sentences

entered pursuant to those pleas.               Neither the district court

nor this court has authority to grant the relief requested

by appellant. See id. (noting in context of Rule 11(e)(1)(C)

agreement that “[i]f we rule that some provision of the plea

agreement is invalid, we must discard the entire agreement

and require the [defendant] and the government to begin

their    bargaining       all    over     again”).       The    relief       that

appellant       seeks    would    only    be    available      if    the     plea

Agreements had been entered pursuant to Rule 11(e)(1)(B).

Appellant waived the argument that the district courts erred

in construing the Agreements as pursuant to subsection (C),

however, by failing to explicitly make that argument in his

brief. See Airport Impact Relief, Inc. v. Wykle, 192 F.3d

197,     207    (1st    Cir.    1999)    (“Issues    adverted        to    in    a

perfunctory       manner,       unaccompanied       by   some       effort      at

developed argumentation, are deemed waived for purposes of

appeal”).

               Even if Gutierrez had not waived it, the argument

that the district courts erred in construing the Agreements

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as pursuant to Rule 11(e)(1)(C) would not have prevailed.

“This court has held that a question of the interpretation

of the terms of a plea agreement is an issue of fact to be

resolved by the district court.” Giorgi, 840 F.2d at 1028.

We have upheld the district court’s construction of an

ambiguous    agreement   where   it    was   “consistent   with   the

reasonable expectations of the parties.” Id.          The district

courts’ constructions of the Agreements met that standard in

each of the three cases before us.

            A. Appeal No. 99-1458

            The transcripts of the change of plea hearing and

sentencing hearing in this case leave no doubt that the

parties understood the plea agreement to be pursuant to

subsection (C).    See United States v. Siedlik, 231 F.3d 744,

748 n.1 (10th Cir. 2000)(relying on statements by parties at

change of plea hearing and sentencing to discern whether

ambiguous plea agreement was pursuant to Rule 11(e)(1)(B) or

(C)); United States v. Kummer, 89 F.3d 1536, 1543 (11th Cir.

1996)(same).

            At the change of plea hearing, on October 28, 1998,

the government attorney clearly stated that the plea was

pursuant to Rule 11(e)(1)(C).          Gutierrez did not dispute

that statement and acknowledged his understanding of the

court’s explanation of the defining characteristics of a

                                 -6-
subsection      (C)    agreement.            At   sentencing,        the    judge

responded to Gutierrez’ argument that the plea was ambiguous

and should be construed as pursuant to subsection (B), by

stating that the transcripts from the change of plea hearing

made it “very clear” that the plea was entered pursuant to

subsection (C).        Any ambiguity in the language of the plea

agreement was resolved at the change of plea hearing in this

case.     The    district         court’s     construction      of    the       plea

agreement as pursuant to subsection (C) at the sentencing

hearing   was        consistent       with     the     parties’      reasonable

expectations.

           Gutierrez’ sentence in this case is affirmed. See

Loc. R. 27(c).

           B. Appeal No. 99-1457

           In    this       case,    the     ambiguous     language        of   the

Agreements was not resolved at the change of plea hearing.

Instead, the district court’s statements exacerbated the

ambiguities by reiterating the contradictory terms included

in the Agreements.          However, the change of plea hearing in

this case was held on November 4, 1998, only one week after

the change of plea hearing in Appeal No. 99-1458.                               The

agreements      in    the   two     cases    were      virtually     identical.

Therefore, Gutierrez was on notice that the Agreements had

been    interpreted         as      pursuant      to     Rule     11(e)(1)(C).

                                       -7-
Nonetheless, Gutierrez did not seek to clarify at the change

of plea hearing whether the agreement was entered pursuant

to subsection (B) or (C).

             At       the    sentencing      hearing,       the     district        court

stated that when it accepted Gutierrez’ guilty plea, it

“considered the plea to be an 11(e)(1)(C) plea.”                               Arguably,

the district court ought to have acknowledged the ambiguous

nature     of     the       plea   agreement       at   sentencing            and   given

Gutierrez the opportunity to withdraw his plea if he had not

intended        to    plea     guilty       pursuant        to    subsection        (C).

However, there would be little point in remanding now for

the court to offer appellant the chance to withdraw his

plea.      Gutierrez seeks only to have his sentence modified,

not   to    withdraw         his    guilty    plea.         He    has    consistently

maintained that he does not wish to withdraw his guilty

pleas.      When offered the opportunity to do so during his

sentencing        hearing      in    Appeal       No.   99-1680,         he    declined.

Therefore,           remand    for    that        purpose        would    be    futile.

Gutierrez is not entitled to the relief he seeks.

             Gutierrez’ sentence in this case is affirmed. See

Loc. R. 27(c).

             C. Appeal No. 99-1680

             In       this    case,    as    in     Appeal       No.     99-1457,     the

ambiguity in the language of the Agreements was not resolved

                                            -8-
at the change of plea hearing.               The district court merely

repeated    the    contradictory          language   in    the    Agreements,

suggesting that even if the court accepted the plea, it

would not be bound by the sentencing provisions therein.

Here again, however, the change of plea hearing in this case

followed shortly after the change of plea hearing in Appeal

No.   99-1458,         at   which   the     court    had    interpreted      a

practically identical plea agreement as pursuant to Rule

11(e)(1)(C).

            At his sentencing hearing, Gutierrez argued that

the plea agreement should be construed as pursuant to Rule

11(e)(1)(B) and that the court should not be bound by the

stipulation       to    the   role-in-the-offense          enhancement.     In

response to Gutierrez’ contention that he was not a manager

under U.S.S.G. § 3B1.1, the sentencing court offered him the

chance to withdraw his plea.              The court clearly stated that

it interpreted the plea agreement as pursuant to subsection

(C), but gave Gutierrez the opportunity to withdraw the

plea, if he had not intended to enter a subsection (C)

agreement.        Gutierrez declined to withdraw the plea and,

instead, withdrew his request to be “relieved of [his]

admission that [he] acted as manager.”

            Under these circumstances, the district court did

not   err    in    construing       the     agreement      as    pursuant   to

                                     -9-
subsection (C) at the time of sentencing.               The sentencing

judge properly offered Gutierrez the opportunity to withdraw

from the subsection (C) agreement if it did not represent

his true intentions.      However, Gutierrez declined to do so.

Thereafter,      in    treating   the    plea   as   pursuant      to   Rule

11(e)(1)(C),     the    district    court       acted   in     a    manner

“consistent    with     the   reasonable        expectations       of   the

parties.” Giorgi, 840 F.2d at 1028.

         Gutierrez’ sentence in this case is affirmed. See

Loc. R. 27(c).




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