               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 04-1289

                             UNITED STATES,

                                Appellee,

                                     v.

              ISMAEL ESTEBAN FIGUEROA-DE-LA-CRUZ,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                                  Before

                       Selya, Lynch and Lipez,
                           Circuit Judges



     Joseph C. Laws, Jr., Federal Public Defender, and Hector E.
Guzman-Silva, Assistant Federal Public Defender, on brief for
appellant.
     H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Assistant U.S. Attorney, and Thomas F. Klumper, Assistant U.S.
Attorney, on brief for appellee.



                             April 1, 2005
            Per Curiam.      In this sentencing appeal, the defendant,

Ismael Esteban Figueroa-De-La-Cruz ("Figueroa"), argues that the

district court erred in two ways:             (1) in basing his sentence on

theft of more than $10,000 when his indictment charged him with

theft of only $10,000 and (2) in delegating authority to the

probation officer to order an unlimited number of drug tests during

his supervised release.          Because we find that Figueroa knowingly

and voluntarily waived his right to appeal his sentence and that

the alleged sentencing errors do not constitute manifest injustice,

we affirm.

                                 DISCUSSION

A.    Waiver of Appeal

            In his plea agreement, Figueroa agreed "that if [the

District] Court accepts this agreement and sentences defendant

according    to    its   terms    and   conditions,   defendant   waives   and

surrenders defendant's right to appeal the judgment and sentence in

this case."       For such a presentence waiver of appellate rights to

be valid and enforceable, "the baseline . . . is that the defendant

enter[ed] into it knowingly and voluntarily."              United States v.

Teeter, 257 F.3d 14, 24 (1st Cir. 2001).          And "critically important

to a determination of knowledge and volition" are "the text of the

plea agreement and the content of the change-of-plea colloquy."

Id.     Specifically, for such a           waiver to be valid, the plea

agreement should "contain[] a clear statement elucidating the


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waiver and delineating its scope," id.; and, at the change-of-plea

hearing, "the court's interrogation [should] suffice to ensure that

the defendant freely and intelligently agreed to waive [the] right

to appeal [the] forthcoming sentence," id.; see also Fed. R. Crim.

P. 11(b)(1)(N) (requiring such a colloquy).

              Here, the language of the waiver was clear.              Indeed, as

we previously concluded with respect to an identically worded

waiver, "[t]here can be no doubt that the plea agreement contained

'a clear statement elucidating the waiver and delineating its

scope.'"      United States v. De-La-Cruz Castro, 299 F.3d 5, 10 (1st

Cir. 2002) (quoting Teeter, 257 F.3d at 24).                 At the end of the

agreement, Figueroa certified that he "ha[d] read this agreement

and carefully reviewed every part of it with my attorney [and that

he]   fully    understand[s]     this    agreement    and    [he]   voluntarily

agree[s] to it."       His attorney signed a certification to the same

effect.       "These    desiderata      furnish   prima     facie   evidence   of

[Figueroa's] knowledge and volition."              Teeter, 257 F.3d at 26.

Further indicia of Figueroa's ability to understand the agreement

are   his   age     (36),   education    (high    school    graduate    and   some

university studies), and experience (teaching a GED course).

              The   colloquy   at    Figueroa's     plea    hearing     was   also

sufficient to ensure that he understood his preexisting waiver of

appeal.       After the court specifically pointed out the waiver

provision and confirmed that Figueroa's attorney had explained the


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provision to him and that Figueroa understood it, the court further

asked, "So you understand that by entering into this Plea Agreement

you will have waived or given up your right to appeal all or part

of the sentence as long as it complies with [the waiver provision]

of   the    Plea     Agreement?";   and    Figueroa   responded,     "Yes."      In

assessing the sufficiency of a virtually identical exchange, we

readily rejected an argument that "[t]he plain language of the

district court's inquiry" was somehow misleading.                      De-La-Cruz

Castro, 299 F.3d at 11.          The colloquy here was thus very different

from the one that we found deficient in Teeter, where the district

court      neither    directed     defendant's   attention      to   the    waiver

provision of the plea agreement nor otherwise discussed that

provision      but,     instead,     affirmatively     sought    and       obtained

confirmation of defendant's understanding that she would have a

right to appeal any sentence the court imposed.

               Thus, Figueroa's waiver of appeal was sufficiently

knowing and voluntary to satisfy the Teeter criteria.                Although we

may nevertheless refuse to honor such a waiver where a miscarriage

of justice has occurred, Teeter, 257 F.3d at 26, that prerogative

is "applied sparingly and without undue generosity" and only "where

a miscarriage of justice occurred," id.

B.   Computing Sentence Based on Theft of More Than $10,000

              Figueroa had ample notice, when he pleaded guilty, of the

amount of loss that the court would use to compute his sentence and


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of the resulting sentencing range, and he expressly stipulated to

the truth of the underlying facts.              Given the lack of a factual

dispute as to the amount of loss, Figueroa was not prejudiced by

the indictment's reference to a theft of "$10,000," rather than the

higher amount that was ultimately used to calculate his sentence.

See United States v. Riggs, 347 F.3d 17, 20 (1st Cir. 2003), cert.

denied, 540 U.S. 1126 (2004); United States v. Duarte, 246 F.3d 56,

62 (1st Cir. 2001).

C.   Delegation of Sentencing Authority

           Figueroa's remaining claim of error is that the district

court   impermissibly    delegated    to        the   probation   officer   the

responsibility for determining the maximum number of drug tests

that Figueroa is required to undergo during his supervised release.

Although the government confesses error on this point, we find no

error and therefore affirm the district court's sentence in this

respect. See United States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st

Cir. 2004) (stating that court of appeals need not accept agreed-

upon but mistaken legal propositions).

           Although     we   have    invalidated         supervised    release

conditions   expressly   delegating        to   the   probation   officer   the

responsibility for determining the number of drug tests that a

defendant must undergo, United States v. Vega, 398 F.3d 149, 154

(1st Cir. 2005); United States v. Padilla, 393 F.3d 256, 258-59 (1st

Cir. 2004) (per curiam); United States v. Melendez-Santana, 353


                                     -5-
F.3d 93, 103 (1st Cir. 2003), the condition here does not embody any

such express delegation to the probation officer.       Rather, the

district court's oral sentence required Figueroa to "submit to a

drug test within 15 days of release, and at least t[w]o periodic

tests thereafter."    Its written sentence, which appears to be a

form, is virtually identical:     "The defendant shall submit to one

drug test within 15 days of release from imprisonment and at least

two periodic drug tests thereafter."      Neither the oral nor the

written sentence expressly delegates the determination of the

maximum number of tests to the probation officer.

           Recently, we construed the very language used here as

judicially capping the number of drug tests at three, rather than

impermissibly delegating the determination of the maximum number of

tests to the probation officer.    United States v. Lewandowski, 372

F.3d 470, 471 (1st Cir. 2004).      We apply that same construction

here.   As so construed, no improper delegation--and, therefore, no

manifest injustice--has occurred.

           The sentence is affirmed.    See Local Rule 27(c).




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