            United States Court of Appeals
                        For the First Circuit

No. 17-1117

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                       AXEL IRIZARRY-ROSARIO,

                        Defendant, Appellant.


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

           [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before

                         Howard, Chief Judge,
                       Kayatta, Circuit Judge,
              and Torresen, Chief U.S. District Judge.


     Richard B. Klibaner and Klibaner & Sabino on brief for
appellant.
     Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, John A. Mathews II, Assistant United
States Attorney, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.


                         September 10, 2018




     
         Of the District of Maine, sitting by designation.
                 TORRESEN, Chief District Judge.             Defendant-Appellant

Axel          Irizarry-Rosario     challenges    his     84-month   sentence   for

possession of firearms on the grounds that the government breached

its plea agreement with him.            Finding no error, we affirm.

     I.        Background

                 On September 15, 2016, Irizarry-Rosario pleaded guilty

to a two-count indictment entered after a police search of his

residence uncovered six guns, a significant amount of ammunition,

and eighty-two small bags of cocaine.                  Count I of the indictment

charged Irizarry-Rosario with possessing firearms in furtherance

of    a       drug   trafficking    crime   in   violation     of   18   U.S.C.   §

924(c)(1)(A)(i).            Count II charged the possession of cocaine with

intent to distribute in violation of 21 U.S.C. § 841(a)(1).1

                 For Count I, the parties' plea agreement stipulated that

the government would recommend a sentence of sixty months, the

minimum term of imprisonment required by 18 U.S.C. § 924(c).                   For

Count II, the parties agreed that Irizarry-Rosario's Base Offense

Level under U.S.S.G § 2D1.1 was twelve and that his Total Offense

Level was ten. The parties did not stipulate to a Criminal History

Category.         However, the parties agreed that if the district court

found that Irizarry-Rosario fell within Criminal History Category




          1
          Our discussion of the facts is drawn from the plea
agreement and the transcript of the sentencing hearing. See United
States v. Arroyo–Maldonado, 791 F.3d 193, 196 (1st Cir. 2015).


                                        - 2 -
I,   then   under   the   sentencing   guidelines   Irizarry-Rosario's

sentencing range would be six to twelve months. The plea agreement

provided that Irizarry-Rosario would seek a sentence at the lower

end of this range and that the government would argue for a

sentence at the higher end.       The parties also agreed that any

recommendation by either party for a term of imprisonment below or

above the stipulated sentence recommendations would constitute a

material breach of the plea agreement.

            At Irizarry-Rosario's sentencing hearing, the government

kept its arguments brief.     The prosecution began by stating that

the parties had entered into a plea agreement and that for Count

I, "we are going to be requesting 60 months."           The following

exchange ensued:

            [THE GOVERNMENT]:   However, for the cocaine
            count, the Defense can request 6 months and
            the Government can request up to 12 months.
            The Government encourages the Court to
            sentence the Defendant in the higher end of
            those 12 months based on the sheer volume and
            quantity of firearms that were seized, and the
            ammunition that was seized.       We are not
            talking about self-defense –

            THE COURT: The higher end of the drug charge
            because of the weapons?

            [THE GOVERNMENT]:   The weapons is 60 months
            minimum statutory. That's what we stand by.
            But, however, for the cocaine count, in which
            there is a spread – there is a range from 6 to
            12 months – we encourage the Court to sentence
            him to the higher end of those 12 months based
            on the amount of firearms that were seized,



                                 - 3 -
            the amount of ammunition, and the magazines
            that were seized in his house, Your Honor.

The government offered nothing further.       At the close of the

hearing, after finding that Irizarry-Rosario fell within Criminal

History Category I, the district court rehearsed the relevant facts

including the full list of firearms and the number of rounds that

the police had found in Irizarry-Rosario's residence. The district

court then addressed the government's recommended sentence on

Count I:

            Because of the significant number of weapons,
            some with obliterated serial numbers, and
            ammunition found, including assault rifles,
            large capacity magazines chocked full of
            ammunition, and additional ammunition in
            boxes, the Court finds that the sentence to
            which the parties agreed does not reflect the
            seriousness of the offense, does not promote
            respect for the law, does not protect the
            public from further crimes by Mr. Irizarry[-
            Rosario], and does not address the issues of
            deterrence and punishment.

The district court went on to sentence Irizarry-Rosario to eighty-

four months of imprisonment as to Count I and twelve months as to

Count II, to be served consecutively.

  II.    Analysis

            Irizarry-Rosario claims that the government breached the

parties' plea agreement by arguing, albeit implicitly, that the

agreed-upon sixty-month sentence for his weapons charge was too

low.    Because Irizarry-Rosario did not object to the government's

alleged breach below, our review is for plain error. United States


                                - 4 -
v. Oppenheimer–Torres, 806 F.3d 1, 4 (1st Cir. 2015).                                Irizarry-

Rosario therefore must show: "(1) that an error occurred (2) which

was   clear       and    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."           Id. (quoting United States v. Marchena–Silvestre,

802 F.3d 196, 200 (1st Cir. 2015)).

              A    defendant        who        enters     into       a     plea      agreement

relinquishes significant constitutional rights.                           United States v.

Rivera–Rodríguez, 489 F.3d 48, 57 (1st Cir. 2007).                              We therefore

"hold    prosecutors        engaging       in    plea     bargaining           to    'the    most

meticulous standards of both promise and performance.'"                                       Id.

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

2002)).    In short, "[t]he government must keep its promises or the

defendant must be released from the bargain."                             United States v.

Kurkculer, 918 F.2d 295, 297 (1st Cir. 1990).

              At       times,     the   government's           obligation           to     adhere

scrupulously to a plea agreement collides with its equally firm

obligation        to    provide    relevant       information        to    the       sentencing

court.     United States v. Ubiles–Rosario, 867 F.3d 277, 283 (1st

Cir. 2017).        When these commitments conflict, we look to the plea

agreement's terms "to 'help resolve the[] competing tugs.'"                                  Id.

at 284(quoting United States v. Miranda–Martinez, 790 F.3d 270,

275 (1st Cir. 2015)).


                                           - 5 -
               Here, Irizarry-Rosario acknowledges that the government

facially complied with the plea agreement by requesting a sixty-

month sentence for Count I, but he claims that the government then

sought    to    undermine   that      recommendation.      Irizarry-Rosario's

support for his position is that during the plea colloquy the

government twice referred to the large quantity of weapons and

ammunition Irizarry-Rosario possessed at the time of his arrest.

Through     these      references,       Irizarry-Rosario     contends,      the

government tacitly argued that the district court should impose a

sentence above sixty months.

               "We   prohibit   not    only    explicit   repudiation   of   the

government's [plea-bargain] assurances but also end-runs around

those assurances."        United States v. Cruz–Vázquez, 841 F.3d 546,

548 (1st Cir. 2016).        There is, however, no indication here that

the government took with one hand what it had given with the other.

The government did not lament the plea agreement's terms or

otherwise suggest that it would seek a different sentence if free

to do so.       See United States v. Clark, 55 F.3d 9, 12 (1st Cir.

1995); United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992).

Instead, the government stated its recommendation on the weapons

charge without any reservation, confirmed to the district court

that its references to Irizarry-Rosario's weapons went only to the

drug charge, and reiterated that it was recommending the sixty-




                                       - 6 -
month sentence on Count I to which the parties had agreed.                      This

reflects adherence to the plea agreement, not a breach.

             The prosecution also did not "gratuitously offer[] added

detail garbed in implicit advocacy" that might have led the

district     court    to     rethink     the     government's      recommendation.

Miranda–Martinez, 790 F.3d at 275 (citing United States v. Gonczy,

357 F.3d 50 (1st Cir. 2004)).              The plea agreement provided that

the government would seek a sentence at the higher end of the

guidelines range for Count II.                 The government was entitled to

explain that recommendation to the sentencing judge, and it did so

briefly and interspersed with reaffirmations of the sixty-month

sentencing recommendation for Count I.                 This was not a breach. See

Ubiles-Rosario,       867    F.3d   at    287        ("Having   unequivocally    and

repeatedly stated that it was recommending a sentence of 300

months, the government was free to offer reasons supporting its

recommendation." (quotation marks and citations omitted)); see

also United States v. Quiñones–Meléndez, 791 F.3d 201, 204 (1st

Cir. 2015) (no error from government's introduction of video

showing the defendant fleeing from officers, where the defendant's

plea agreement contemplated that the government could argue that

the   defendant's           sentences     for         two   counts    should     run

consecutively); United States v. Almonte–Nuñez, 771 F.3d 84, 91

(1st Cir. 2014) (no error from the government's emphasis at

sentencing    on     the    vulnerability       of    the   defendant's   purported


                                         - 7 -
victim; "[t]he Agreement allowed the prosecutor to seek the upper

end   of   the   [guideline     sentencing       range]   contemplated      by   the

Agreement, and the AUSA was within fair territory in emphasizing

facts   that     made   a   sentence    at   the   low    end   of   that   [range]

inappropriate").

            Irizarry-Rosario           insists     that     the      government's

references to firearms must have been ill-intentioned because the

number of weapons he possessed was irrelevant to the calculation

of his guideline range on Count II. This argument misses the mark.

As we have recognized, under 18 U.S.C. § 3661 "[n]o limitation

shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which

a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence."                   Cruz–Vázquez, 841

F.3d at 549 (quoting 18 U.S.C. § 3661).                     It requires little

imagination to understand why a defendant's accumulation of a small

arsenal might counsel in favor of a higher sentence on a drug

distribution charge.

            In sum, the government did not breach its plea agreement

with Irizarry-Rosario and there is no error.

  III. Conclusion

            For the reasons set forth above, we affirm Irizarry-

Rosario's sentence.




                                       - 8 -
