          United States Court of Appeals
                     For the First Circuit

No. 13-1896

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    EDWIN OMAR ALMONTE-NUÑEZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]



                             Before

                    Howard, Selya and Stahl,
                         Circuit Judges.



     Heather Golias, with whom Law Office of Heather Golias was on
brief, for appellant.
     John A. Mathews II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
were on brief, for appellee.


                        November 14, 2014
           SELYA, Circuit Judge.    When the government enters into a

plea agreement with a criminal defendant, it acquires a duty to

carry out the obligations it has undertaken in both letter and

spirit.   This duty devolves upon the government's attorneys.    But

those attorneys, as officers of the court, remain bound by their

corollary duty to provide full and accurate information about the

offense and the offender to the sentencing court.       As this case

illustrates, these dual obligations sometimes require prosecutors

to walk a fine line.

I.   BACKGROUND

           We draw the facts from the plea agreement, the change-of-

plea colloquy, the presentence investigation report (PSI Report),

and the transcript of the disposition hearing.     See United States

v. Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010).

           Early on the morning of September 30, 2011, Puerto Rico

police officers pursued a car in Caparra Heights. The car careened

into a pole and defendant-appellant Edwin Omar Almonte-Nuñez was

observed clambering out of the wreck. The defendant threw a pistol

on the floor as he went.   He and a passenger were arrested.

           There had been a robbery in the neighborhood, leaving an

injured victim behind. During a search incident to arrest, some of

the victim's property (including her passport) was found in the

suspects' possession.




                                   -2-
              The defendant admitted participating in the robbery.          He

further admitted using the pistol to strike the victim, a 78-year-

old widow.      The victim explained in a sworn statement that the

defendant had placed the pistol to her forehead, threatened to

shoot her, twice struck her in the face with the pistol, and

restrained her against a wall.               The victim suffered grievous

injuries, including the loss of her right eye.

              A federal grand jury subsequently returned a superseding

indictment that charged the defendant in pertinent part with

robbing an individual of a United States passport in violation of

18 U.S.C. § 2112 (count 1), brandishing a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 2),

and being a convicted felon in possession of a firearm in violation

of 18 U.S.C. § 922(g)(1) (count 3).            After initially maintaining

his   innocence,    the    defendant   executed    a   plea   agreement   (the

Agreement) and entered guilty pleas to all counts.               See Fed. R.

Crim. P. 11(c)(1)(B).

              In the Agreement, the government and the defendant agreed

to a series of guideline calculations, culminating in a total

offense level of 25.          The parties pledged that neither of them

would   argue    for   any   further   offense-level      adjustments.    The

defendant's criminal history category (CHC) was left open and,

thus,   his    guideline     sentencing   range   (GSR)   was   undetermined.

Nevertheless, the Agreement allowed the defendant to argue for


                                       -3-
sentences on counts 1 and 3 at the low end of whatever GSR emerged

and allowed the government to argue for high-end sentences on those

counts.      With respect to count 2, the parties jointly agreed to

advocate an 84-month sentence (to run consecutive to whatever

sentences the court imposed on the other counts).

              The     Agreement    made     clear     that     these     sentencing

recommendations were not binding on the district court.                   To guard

against the possibility that the court might reject the proposed

calculations, the defendant agreed to waive his right to appeal

only   if    he     was   "sentenced   in   accordance    with    the    terms   and

conditions set forth in the Sentence Recommendation provisions" of

the Agreement.

              We fast forward to March 14, 2013, when the probation

department submitted an amended PSI Report. This version contained

certain information not included in the Agreement's stipulated

facts.      Pertinently, the PSI Report noted that the victim had been

threatened with death and restrained during the robbery. With this

in mind, the PSI Report suggested that the defendant's total

offense level should be 29 (not 25).                  See USSG §2B3.1(b)(2)(F)

(providing        two-level    enhancement      for   threat     of    death);   id.

§2B3.1(b)(4)(B) (providing two-level enhancement for restraining

victim).      It further recommended that the defendant be placed in

the highest available CHC: VI.




                                          -4-
            At a sentencing conference held on April 16, 2013, two

noteworthy developments occurred.      First, the court related its

inclination to adopt the two new enhancements proposed in the PSI

Report.     Second, the court stated that it regarded the parties'

sentencing recommendation on counts 1 and 3 as too lenient.

            The disposition hearing convened on June 14, 2013.   The

defendant did not object to the appropriateness of CHC VI. He did,

however, object to the threat-of-death adjustment, arguing that

this enhancement would constitute double counting in light of the

charge limned in count 2.      The Assistant U.S. Attorney (AUSA)

agreed that a threat-of-death adjustment would constitute double

counting.     The court acquiesced, and that proposed adjustment

dropped out of the case.

            The court followed up by asking the AUSA whether the

proposed restraint adjustment would be double counting.          She

replied that it would not.     The defendant did not challenge the

accuracy of this response but nonetheless beseeched the court to

use the total offense level adumbrated in the Agreement (25).

Later in the proceeding, the defendant objected to inclusion of the

restraint adjustment, maintaining that the government had not

mentioned that element in the plea negotiations and that, in all

events, there was insufficient evidence to justify a finding that

the victim had been restrained.        The AUSA rejoined that the

government had provided full discovery and that the victim impact


                                 -5-
statement furnished a factual basis for the two-level restraint

enhancement. At the same time, however, the AUSA assured the court

that    the    government          stood    by   the     sentencing    recommendations

delineated in the Agreement.

               This exchange concluded with the court advising the

parties       that    it    was     inclined     to      incorporate    the   restraint

enhancement into the offense-level calculation.                        Doing so would

boost the defendant's offense level to 27, resulting in a GSR of

130 to 162 months.

               The court then heard arguments about what sentence to

impose.       The defendant's lawyer argued that, if the court used an

offense level of 27, it should impose a bottom-of-the-range 130-

month sentence on counts 1 and 3.                   While the AUSA reiterated that

the    government          stood    by     the   Agreement     and     its    sentencing

recommendations, she referenced the seriousness of the offenses,

the various aggravating factors, and the need for deterrence. When

the court made clear that the higher GSR would apply, the AUSA

recommended          137-month      sentences       on    counts   1   and    3.    Not

coincidentally, 137 months represented the high end of the GSR that

would have applied if the court had stuck with an offense level of

25.     The court continued to press the AUSA about the restraint

enhancement, whereupon the AUSA repeated that there was a factual

basis for the enhancement but asked the court to impose a sentence

in     accordance       with       the     Agreement's     sentence     recommendation


                                              -6-
provisions (in other words, a sentence premised on an offense level

of 25).

              The rest is history.         The court applied the restraint

enhancement and set the defendant's total offense level at 27. The

GSR for counts 1 and 3 thus became 130 to 162 months.                  The court

sentenced the defendant to concurrent 150-month incarcerative terms

on    those    counts,     to    be    followed   by   the    agreed     84-month

incarcerative term on count 2.            This timely appeal followed.

II.   ANALYSIS

              In this venue, the defendant presses two claims of error.

First, he says that the government breached the Agreement and that,

therefore, he should be resentenced before a different judge.

Second, he says that the 150-month sentence on count 3 must be

vacated because it exceeds the statutory maximum for that count.

              There is, however, a threshold issue: the government

contends      that   the   waiver-of-appeal       clause     contained   in   the

Agreement bars our review of the defendant's claims of error.                 We

start there.

                                A.    Appeal Waiver.

              It is black-letter law that a criminal defendant may

waive his right to appeal.            See United States v. Teeter, 257 F.3d

14, 23 (1st Cir. 2001).          We will enforce such a waiver as long as

"the defendant knowingly and voluntarily agreed to its terms and

enforcement would not result in miscarriage of justice."                  United


                                         -7-
States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007) (citing Teeter,

257 F.3d at 24-26).

               Of course, a waiver of appeal precludes only those

appeals that fall within its scope.                          See Fernández-Cabrera, 625

F.3d at 51; McCoy, 508 F.3d at 77.                           In determining whether an

appeal is within the scope of a waiver provision, we interpret a

plea agreement according to traditional contract-law principles.

See United States v. Murphy-Cordero, 715 F.3d 398, 400 (1st Cir.

2013).     Here,           the   terms     of    the    waiver-of-appeal       clause   are

unequivocal: the defendant is foreclosed from appealing only if he

was "sentenced in accordance with the terms and conditions set

forth in the Sentence Recommendation provisions" of the Agreement.

               As    to     counts    1    and    3,    the    sentence   recommendation

provisions contemplated a total offense level of 25 (with no

further   offense-level            adjustments)         and     a   sentence   within   the

ensuing GSR.          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.                      Such a GSR, even at the highest

possible CHC (VI), tops out at 137 months.                          See USSG Ch.5, Pt.A,

sentencing table.            The defendant's 150-month sentences on counts 1

and 3 were above this ceiling.                   It follows, as night follows day,

that the sentences imposed on counts 1 and 3 were not in conformity

with     the        Agreement's           sentence      recommendation         provisions.


                                                 -8-
Consequently,   the   waiver-of-appeal      clause   does   not   pretermit

appellate review.     See, e.g., Murphy-Cordero, 715 F.3d at 400.

          The government resists this conclusion.           It asseverates

that the defendant was sentenced in conformance with the sentence

recommendation provisions because those provisions did not lock in

a particular GSR and the Agreement otherwise informed the defendant

that the district court retained ultimate sentencing discretion.

This is anfractuous reasoning, and we reject it.

          We interpret a plea agreement as a whole and strive to

give effect to all of its terms.     See United States v. Okoye, 731

F.3d 46, 49 (1st Cir. 2013). Here, the Agreement unambiguously set

the offense level at 25 and barred arguments in favor of further

adjustments.    That the Agreement informed the defendant that the

district court retained ultimate sentencing discretion does not

eviscerate these commitments.1      The waiver-of-appeal clause is,

therefore, a dead letter.

                         B.   Purported Breach.

          We turn next to the defendant's claim that the government

failed to abide by the Agreement.        Whether the government breached

the terms of a plea agreement is usually a question of law, which


     1
       With minimal effort, the government could have drafted a
waiver clause having the effect that it unrealistically ascribes to
the language actually used in the Agreement. See United States v.
Isom, 580 F.3d 43, 51 (1st Cir. 2009) (considering waiver provision
that applied "if the sentence imposed by the Court is within the
guideline range determined by the Court or lower."        (emphasis
supplied) (internal quotation mark omitted)).

                                   -9-
we review de novo.   See United States v. Clark, 55 F.3d 9, 11 (1st

Cir. 1995).    But where, as here, the defendant fails to object to

the purported breach before the district court, review is only for

plain error.     See Puckett v. United States, 556 U.S. 129, 143

(2009); United States v. Rivera-Rodríguez, 489 F.3d 48, 57 (1st

Cir. 2007).

          The path of plain-error review is well traveled.     The

appellant must shoulder the burden of showing "(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); accord United States v. Olano, 507 U.S. 725, 732 (1993).

Within this taxonomy, an error is deemed to affect substantial

rights when it likely affected the outcome of the proceedings. See

Puckett, 556 U.S. at 135.

          The government perplexingly concedes that it breached the

Agreement's prohibition against supporting further adjustments by

advising the court that the record contained a factual basis for

the restraint adjustment.    A federal court in a criminal case is

not obliged to accept the government's confession of error, see

United States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004),

and we decline to do so here.     Our cases make pellucid that the

AUSA was under an unflagging duty, as an officer of the court, to


                                -10-
provide this accurate factual information to the sentencing judge

once the judge had raised the issue.   See United States v. Gonczy,

357 F.3d 50, 53 (1st Cir. 2004). Because the AUSA's statements did

no more than fulfill this duty, they could not constitute a breach

of the Agreement.   We explain briefly.

          A defendant who enters a plea agreement waives a panoply

of constitutional rights and, therefore, we hold prosecutors to

"the most meticulous standards of both promise and performance."

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

quotation marks omitted); see Clark, 55 F.3d at 12. Such standards

require more than lip service to, or technical compliance with, the

terms of a plea agreement.   See Rivera-Rodríguez, 489 F.3d at 57;

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

          However, this principle does not operate in a vacuum. We

repeatedly have emphasized that prosecutors have a concurrent and

equally solemn obligation to provide relevant information to the

sentencing court and that a plea agreement may not abridge that

obligation. See, e.g., Gonczy, 357 F.3d at 53; Saxena, 229 F.3d at

6; see also United States v. Canada, 960 F.2d 263, 270 n.7 (1st

Cir. 1992) ("It is necessary at all times that the government

'level' with the court as to the correct facts and calculations

relevant to guideline sentencing.").

          In this instance, the Agreement obligated the government

"to refrain from arguing further guideline adjustments" to an


                               -11-
offense level of 25.          But there is a material difference between

answering questions asked by a sentencing court or bringing facts

to    the   court's     attention    and     affirmatively      supporting   an

adjustment.      See Clark, 55 F.3d at 13.          The AUSA's statements here

plainly were made in response to the district court's inquiry and

to correct what the AUSA reasonably viewed as a misstatement of

fact by defense counsel.         Seen in this light, those statements did

not   cross      the   line   into   forbidden       terrain:   supporting   an

enhancement entails an element of advocacy, and there was no such

advocacy by the prosecutor here.           See Saxena, 229 F.3d at 7-8.

            It    is   equally    plain      that    the   AUSA's   substantive

sentencing argument did not transgress the Agreement.                 The AUSA

made the following argument:

            Considering all of the facts and in this case
            we are talking about a defenseless female, 70
            year old woman, attacked in a way that nobody
            should have to face a situation like this.
            When she is sleeping, in a vulnerable state,
            the way it happened and the vicious way that
            he committed the crime, when he assaulted her
            with no provocation on her part.     The fact
            that she suffered severe bodily injury, she
            lost her right eye, and to this day she has
            almost lost her eyesight.   She is basically
            blind at this point. She needs the continued
            help of her family.

            . . . .

            We stand by the plea agreement and in a sense
            we have to recommend to the Court the higher
            end of the guideline, not the lower end. That
            is    considering   the    defendants    [sic]
            background, all [section] 3553 factors and the
            need to protect the community from future

                                      -12-
              crimes of this defendant and send a message
              that crimes like this will not be tolerated.

              . . . .

              We are standing by the plea agreement with the
              guidelines negotiated by the parties.

Following additional questioning from the court concerning the

restraint adjustment, the AUSA reiterated that the government

intended to adhere to the Agreement and twice recommended a 137-

month      sentence.       This   sentencing     recommendation       tracked   the

Agreement, which expressly permitted the government to seek a

sentence at the high end of the applicable GSR based on offense

level 25.

              The defendant has a fallback position.            He insists that

the AUSA's conduct, taken as a whole, conveyed the government's

tacit support for the restraint adjustment.             A fair reading of the

transcript     of    the   disposition     hearing    belies    the   defendant's

tendencious characterization.            At no time did the AUSA advocate in

favor of the newly emergent restraint adjustment. To the contrary,

she repeatedly asserted that the government stood by the Agreement.

              To be sure, it is possible for a prosecutor to undercut

a plea agreement while paying lip service to its covenants.                     Our

decision in Clark illustrates this point. There, we found a breach

of   the    plea    agreement     when   the    government,    without   formally

opposing a downward adjustment that it had agreed not to oppose,




                                         -13-
made it clear that it regarded the adjustment as inappropriate.

See 55 F.3d at 12.

           We    consider       the    totality    of    the   circumstances     in

determining whether a prosecutor engaged in impermissible tactics.

See, e.g., Gonczy, 357 F.3d at 53-54; Saxena, 229 F.3d at 6-7.

Here,   there    is    no   basis     for   concluding    that    the   prosecutor

reaffirmed a promise to the defendant out of one side of her mouth

and tried to subvert it out of the other side.                     The AUSA said

nothing that could reasonably be construed as an indication that

she supported the restraint adjustment.              No more is exigible: the

AUSA was not required to be effusive in refusing to support the

adjustment.      Cf. Canada, 960 F.2d at 270 (explaining that a

prosecutor is not obliged to present an agreed representation "with

any particular degree of enthusiasm").

           In a final effort to save a sinking ship, the defendant

suggests that there is more to the AUSA's argument than meets the

eye.     He     says    that,    peeking       beneath   the     surface   of   the

recommendation, the AUSA insinuated that she was touting an overly

lenient sentence only because she was precluded from arguing for a

stiffer one.     In particular, the defendant complains that the AUSA

"highlighted the vulnerable nature of the complainant and the

impact on her daily life."              He adds that the court's earlier




                                        -14-
characterization of the recommended sentence as too lenient should

have put the government on notice of the need to tread lightly.2

           This plaint leads nowhere.            The Agreement allowed the

prosecutor to seek the upper end of the GSR contemplated by the

Agreement, and the AUSA was within fair territory in emphasizing

facts    that   made    a    sentence    at    the   low   end    of   that   GSR

inappropriate.         See   Rivera-Rodríguez,       489   F.3d   at   58.    The

defendant admitted to committing a heinous crime resulting in

horrific injuries, and nothing contained in the Agreement entitled

him to have the government sugarcoat the facts.

           To say more on this point would be to paint the lily.

Holding steady and true the delicate balance between the AUSA's

dual obligations and considering the totality of the circumstances,

no breach of the Agreement is evident.

                             C.   Count 3 Sentence.

           The defendant's remaining claim of error targets his

sentence on the firearm possession charge (count 3). His thesis is

that the sentence imposed must be vacated because it exceeds the

statutory maximum.       Inasmuch as this claim is raised for the first




     2
       The defendant likewise laments that the AUSA referenced
certain facts not otherwise before the court concerning the
defendant's involvement of his common-law partner's son in the
robbery. While this reference may have been overzealous, it was
not objected to and, in all events, this aspect of the government's
advocacy in no way communicated support for a sentence beyond the
upper range of 137 months, fully in line with the Agreement.

                                        -15-
time on appeal, our review is for plain error.              See Duarte, 246

F.3d at 60.

             The statute of conviction for count 3 is 18 U.S.C.

§ 922(g)(1).     The maximum sentence authorized by Congress for a

violation of this statute is 10 years (120 months).            See 18 U.S.C.

§ 924(a)(2).     In this case, count 3 was grouped with count 1 for

purposes of calculating the applicable offense level.                See USSG

§3D1.2(a).     The court warrantably determined that the GSR was 130

to 162 months and then imposed a 150-month concurrent sentence on

each of the two grouped counts.

             With respect to count 3, this sentence constituted clear

and obvious error.     Guideline calculations simply cannot usurp a

maximum level of imprisonment established by Congress.            See United

States v. Saccoccia, 58 F.3d 754, 786 (1st Cir. 1995).               Nor does

grouping by some mysterious alchemy blend the maximum penalties for

each of the grouped counts.             See USSG §5G1.2, comment. (n.1)

(explaining    that   when   a   defendant   is    sentenced   for   multiple

convictions, the separate statutory maximums limit each sentence).

Consequently, the 150-month sentence on count 3 is above the

maximum sentence permitted by law.

             Notwithstanding     this   manifest   error,   the   government

argues that resentencing is unwarranted because the incorrect

sentence did not affect the defendant's substantial rights and,

therefore, did not amount to plain error.                This argument is


                                    -16-
premised on the defendant's identical and concurrent 150-month

sentence on count 1.

            We have not adopted a uniform rule about whether, without

a preserved claim of error, a defendant who is sentenced to a term

of imprisonment in excess of a statutory maximum is entitled to

relief even though his overall period of immurement will not be

affected.    Compare, e.g., United States v. Matos, 611 F.3d 31, 36

(1st Cir. 2010) (denying relief), with United States v. García-

Ortiz, 528 F.3d 74, 84-85 (1st Cir. 2008) (granting relief).

Although particular cases may differ, flexibility exists and, under

normal circumstances, our discretion should be exercised in favor

of trimming back an excessive sentence.     Our reasoning follows.

            To begin, in an appropriate case, leaving intact a

sentence that exceeds a congressionally mandated limit may sully

the public's perception of the fairness of the proceeding.      That

perception, in turn, may threaten respect for the courts and may

impair their reputation.

            From the defendant's standpoint, collateral consequences

may arise as a result of an above-the-maximum sentence imposed on

a particular count.    The existence and extent of these collateral

consequences are notoriously difficult to predict, but they have

the potential to harm the defendant in a myriad of ways.         See

United States v. Bossany, 678 F.3d 603, 606-07 (8th Cir. 2012)

(recognizing that "mere presence of an excessive sentence in a


                                 -17-
defendant's record has the potential of causing prejudice").            It

strikes us as both unwise and unfair to place the risk of such harm

on the defendant where, as here, the excessive sentence is easy to

correct. See United States v. Kincaid, 898 F.2d 110, 112 (9th Cir.

1990) (refusing to place risk of future prejudice flowing from

erroneous sentence on defendant).

             In the last analysis, correcting such an error will

rarely tax judicial resources and may (depending on what an

uncertain    future   brings)   provide   some   small   benefit   to   the

defendant.     When (as in this case) there are no countervailing

circumstances, we believe that the interests of justice ordinarily

will tip the scales in favor of relief.

             That ends this aspect of the matter.            Because the

sentence on the firearm possession charge (count 3) exceeds the

statutory maximum, we direct the district court, on remand, to

enter a modified sentence of 120 months on that count.        See United

States v. Barnes, 251 F.3d 251, 261 (1st Cir. 2001).

III.   CONCLUSION

             We need go no further. For the reasons elucidated above,

we affirm the defendant's sentence on counts 1 and 2, but order the

court below to enter a modified sentence on count 3.



So Ordered.




                                  -18-
