               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 11-2299

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                      WILLIAM RIVERA-GARCIA,

                       Defendant, Appellant.




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

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]




                              Before
                   Thompson, Stahl, and Lipez,
                         Circuit Judges.



     Jane Elizabeth Lee on brief for appellant.
     Juan Carlos Reyes-Ramos, Assistant United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa
Emilia Rodrígues-Vélez, United States Attorney, on brief for
appellee.


                             June 25, 2013
          STAHL, Circuit Judge.         After being ensnared in a law

enforcement scheme aimed at exposing corrupt police officers in

Puerto Rico, William Rivera-Garcia pled guilty to conspiracy to

possess a controlled substance with intent to distribute, 21 U.S.C.

§ 841(a)(1), and possession of a firearm in furtherance of a

drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A).        Rivera-Garcia

now appeals his conviction, arguing that the government entrapped

him in a manner so outrageous that his prosecution offends the Due

Process Clause.   Because Rivera-Garcia likely waived his right to

make this claim on appeal, and because, in any event, he has failed

to show plain error, we affirm.

                      I.   Facts & Background

          Because this appeal stems from a conviction via a guilty

plea, the following facts are drawn from the plea agreement, plea

colloquy, and sentencing materials.       See United States v. Whitlow,

714 F.3d 41, 42 (1st Cir. 2013).

          The plea agreement included a stipulation of facts that

described the following events:

          [B]eginning on or about June 3, 2009, and
          continuing until on or about June 4, 2009, [2]
          William Rivera Garcia, the defendant herein,
          and co-defendant [1] Arcadio Hernandez Soto
          agreed to provide "armed protection" for a
          drug transaction on behalf of a person who
          they both thought was a drug trafficker for a
          cash payment.

          On June 4, 2009, [2] William Rivera Garcia and
          [1] Arcadio Hernandez Soto arrived at an
          apartment in the District of Puerto Rico to

                                  -2-
          provide armed protection for the seller in a
          drug transaction that involved what they
          thought was cocaine. When the buyer arrived,
          [2] William Rivera Garcia and [1] Arcadio
          Hernandez Soto patted him down to make sure he
          was not armed or possessed any type of
          recording devices. The buyer was then allowed
          into the apartment where he was presented with
          a bag containing a quantity of sham cocaine.
          [2] William Rivera Garcia and [1] Arcadio
          Hernandez Soto both guarded the seller while
          the buyer inspected the kilograms in their
          presence and constructive possession. [2]
          William Rivera Garcia was armed with a firearm
          while this entire simulated drug transaction
          was taking place. The undersigned parties
          agree that the total quantity of cocaine
          attributable to [2] William Rivera Garcia was
          between 200 grams and 300 grams of cocaine.

          After the buyer was allowed to leave with the
          sham cocaine, [2] William Rivera Garcia and
          [1] Arcadio Hernandez Soto were paid for their
          protective services.

Rivera-Garcia was paid $2,000 in cash.

          Unbeknownst    to   Rivera-Garcia   and   his   codefendant,

however, the entire scheme was a government construct, aimed at

apprehending corrupt police officers who were moonlighting as hired

guns for drug dealers.    (Rivera-Garcia himself was an ex-police

officer at the time.)    The buyer and seller were both government

agents, and the drugs were fake.       The apartment belonged to the

government.   Federal agents had used informants to make it known

that "drug dealers" were hiring police officers to provide security

for these sham transactions.     Rivera-Garcia was recruited by his

codefendant Arcadio Hernandez Soto, who in turn had been brought in

by a government agent.

                                 -3-
             Rivera-Garcia was charged with, and pled guilty to,

conspiracy    to     possess   a   controlled   substance   with   intent   to

distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm in

furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A).

His plea agreement contained a waiver of his appellate rights,

which read: "The defendant hereby agrees that if this Honorable

Court accepts this plea agreement and sentences him according to

its terms, conditions and recommendations, the defendant waives and

surrenders his right to appeal the judgment and sentence in this

case." At the change-of-plea hearing, the magistrate judge had the

following colloquy with Rivera-Garcia about this waiver:

             THE MAGISTRATE: Do you understand that you
             can appeal your conviction if you believe the
             guilty plea was somewhat [sic] unlawful or
             involuntary or if there is some other
             fundamental defect in the proceedings which
             was not waived by a guilty plea?

             Do you understand that?

             DEFENDANT:    Yes.

             . . .

             THE MAGISTRATE: Notwithstanding, Mr. Rivera,
             your Plea Agreement contains, in paragraph 15,
             a Waiver of Appeal, in which you agree that if
             the Court accepts the Plea Agreement and
             sentences   you   according  to   its   terms,
             conditions and recommendation you waive and
             surrender your right to Appeal the Judgment
             and Sentence, in this case.

             Are you aware of the Waiver of Appeal?

             DEFENDANT:    Yes.


                                       -4-
          THE MAGISTRATE: Have you discussed the Waiver
          of Appeal and its consequences with you [sic]
          counsel?

          DEFENDANT:     Yes.

          The court found that Rivera-Garcia's plea was intelligent

and voluntary and accepted it.        He was then sentenced to a total of

eighty-four months' imprisonment.           This appeal followed.

                                II.   Analysis

          The crux of Rivera-Garcia's appeal is that the government

scheme that snared him was so excessive, so outrageous, that it

went beyond permissible law enforcement tactics and violated the

Due Process Clause.       This argument relies on the "outrageous

misconduct" doctrine, under which (in at least some formulations)

a defendant's due process rights are violated when "law enforcement

personnel become so overinvolved in a felonious venture that they

can fairly be said either to have 'creat[ed]' the crime or to have

'coerc[ed]' the defendant's participation in it." United States v.

Santana, 6 F.3d 1, 5 (1st Cir. 1993) (quoting United States v.

Mosley, 965 F.2d 906, 911-12 (10th Cir. 1992)).                  The government

rejoins that this was little more than a run-of-the-mill sting

operation, and that, in any event, Rivera-Garcia has waived the

right to raise his outrageous-misconduct claim on appeal.

          The government's waiver argument relies both on the

express   appellate    waiver     provision      in    Rivera-Garcia's     plea

agreement,   described   above,       and   on   the   general    rule   that   a


                                      -5-
defendant who knowingly and voluntarily pleads guilty "may not

thereafter raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the

guilty plea."   Tollett v. Henderson, 411 U.S. 258, 267 (1973); see

United States v. Broce, 488 U.S. 563, 569 (1989).      Rivera-Garcia

acknowledges these obstacles, but contends that his outrageous-

misconduct claim is beyond the scope of the waiver clause in the

plea agreement.    He also argues that his claim fits within the

narrow exception to the general guilty-plea waiver rule recognized

in Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York,

423 U.S. 61 (1975) (per curiam).      In those cases, the defendants

had pled guilty, but the Supreme Court nevertheless allowed them to

challenge their convictions on the basis that the government had

violated their due process or double jeopardy rights in such a way

that they could not constitutionally be haled into court at all.

See United States v. De Vaughn, 694 F.3d 1141, 1150-53 (10th Cir.

2012) (describing these cases and their effect on the general

guilty-plea waiver rule).1



     1
          The Blackledge-Menna exception to the guilty-plea waiver
rule should not be (but often is) confused with the separate rule
that a guilty plea does not waive jurisdictional defects in a
conviction.   See De Vaughn, 694 F.3d at 1153; United States v.
Gonzalez, 311 F.3d 440, 442 (1st Cir. 2002).         In fact, the
government's brief in this case confuses these distinct concepts.
To be clear: "A guilty plea waives all defenses except those that
go to the court's subject-matter jurisdiction and the narrow class
of constitutional claims involving the right not to be haled into
court." De Vaughn, 694 F.3d at 1153 (emphasis added).

                                -6-
          We    are   skeptical   that    Rivera-Garcia   can   escape   the

consequences of both his explicit waiver of his appellate rights

and his guilty plea itself.       It is true that some cases discussing

the outrageous-misconduct doctrine have described it as "absolutely

bar[ring] the government from invoking judicial processes to

obtain a conviction," United States v. Russell, 411 U.S. 423,

431-32 (1973), which would appear to align it with the "right not

to be haled into court" recognized in Blackledge, 417 U.S. at 30.

But other courts have rejected the idea that Blackledge allows a

defendant to raise any and all due process claims that implicate

his right not to be brought into court, on the ground that "such a

broad rule would allow any defendant to manufacture any sort of due

process violation as a means of undermining the finality of a

guilty plea."    United States v. Doe, 698 F.3d 1284, 1291-92 (10th

Cir. 2012); see also United States v. Elenes, 892 F.2d 84 (9th Cir.

1989) (unpublished table decision) (holding that the Blackledge-

Menna exception did not apply to an outrageous-misconduct claim

that was not evident from the face of the indictment).

          However, we need not decide whether Rivera-Garcia can fit

his claim into the Blackledge-Menna exception, because even if he

can -- and even if he can likewise evade the express waiver clause

in his plea agreement -- his outrageous-misconduct claim fails.

Because this claim was not raised below, we review it only for

plain error.    Compare United States v. Luisi, 482 F.3d 43, 58 (1st


                                    -7-
Cir. 2007) (reviewing preserved outrageous-misconduct claim de

novo), with United States v. Sandlin, 589 F.3d 749, 758 (5th Cir.

2009) ("Our sister circuits have applied plain error review for

claims of outrageous government conduct not preserved in the

district court.").   Under that familiar standard, a defendant must

show that: (1) an error occurred; (2) that was clear or obvious,

and not only (3) affected the defendant's substantial rights but

also (4) impaired the fairness, integrity, or public reputation of

the judicial proceedings.   Puckett v. United States, 556 U.S. 129,

135 (2009); United States v. Zavala-Martí, 715 F.3d 44, 52 (1st

Cir. 2013).

          Rivera-Garcia cannot meet this demanding standard here.

As we have noted before, "[t]he banner of outrageous misconduct is

often raised but seldom saluted."       Santana, 6 F.3d at 4; see also

Luisi, 482 F.3d at 59 (noting that an outrageous-misconduct claim

"has never yet been successful in this circuit").        This is not to

say that an outrageous-misconduct claim can never succeed.         See,

e.g., United States v. Twigg, 588 F.2d 373, 380-81 (3d Cir. 1978)

(outrageous misconduct barred conviction where a government agent

set up a drug lab, supplied the key ingredient to make the drugs,

purchased almost all of the other supplies, "was completely in

charge" of the operation, and "furnished all of the laboratory

expertise").    Rather,     the   point    is   that   the   "outrageous

governmental conduct defense is an extraordinary defense reserved


                                  -8-
for only the most egregious circumstances. It is not to be invoked

each time the government acts deceptively or participates in a

crime that it is investigating."      United States v. Sneed, 34 F.3d

1570, 1577 (10th Cir. 1994) (quoting Mosley, 965 F.2d at 910)

(internal quotation mark omitted); see, e.g., United States v.

Simpson, 813 F.2d 1462, 1465-66 (9th Cir. 1987) (informant's use of

sex to lure defendant into selling heroin was not sufficiently

shocking).      Our cases recognize that "outrageousness, by its

nature, requires an ad hoc determination" that cannot "usefully be

broken down into a series of discrete components." Santana, 6 F.3d

at 6.2

             "[T]aking into account the totality of the relevant

circumstances," id. at 7, we do not believe it is "clear or

obvious," Puckett, 556 U.S. at 135, that Rivera-Garcia's case

should have been dismissed on outrageous-misconduct grounds.           We

agree with Rivera-Garcia that his case differs from one in which

the government simply insinuates itself into an ongoing criminal

enterprise. Here, the government was both the buyer and the seller

in the drug deal; as far as the record discloses, no actual drug

dealers were involved.     Cf. Greene v. United States, 454 F.2d 783,

786–87   (9th   Cir.   1971)   (prosecution   was   barred   because   the

government became enmeshed in criminal activity from beginning to


     2
          Our holistic approach to outrageous-misconduct claims
differs from some other courts' analyses, which involve multi-
factor tests. See Santana, 6 F.3d at 6-7 & n.9.

                                   -9-
end by helping to reestablish and sustain bootlegging operations in

which the government was the only customer). But it would be going

too far to say that the government dreamed up this scheme to lure

the unwary into malfeasance; by Rivera-Garcia's own account, the

government was responding to a serious and ongoing corruption

problem in the local police precincts.              It appears that the

government, having identified a recurring problem with police

officers providing security for drug deals, simply substituted

itself for the actual dealers in this particular instance.          Thus,

this is not a case in which the government "involve[d] itself . . .

directly and continuously over . . . a long period of time in the

creation and maintenance of criminal operations." See id. at 787.

Nor did it provide Rivera-Garcia with "opportunities for successive

escalating crimes as part of a sting operation."         United States v.

Fanfan, 468 F.3d 7, 16 (1st Cir. 2006).      And, as other courts have

noted, "the government can act as both supplier and buyer in sales

of   illegal   goods"   without   running   afoul   of   the   outrageous-

misconduct doctrine.     Mosley, 965 F.2d at 912.

           Similarly, Rivera-Garcia is right that, in his case, the

government apparently did not take steps to ensure that he was

fully aware of the nature and extent of the transaction beforehand.

Cf. United States v. Gutierrez, 343 F.3d 415, 417, 442 (5th Cir.

2003) (no outrageous misconduct where agent posing as drug dealer

would meet with corrupt police officers and "tell [them] in no


                                   -10-
uncertain terms the specific nature of the transaction and the

amount of cocaine involved").            But he points to nothing in the

record before us (which, in light of his guilty plea, was not

developed with this claim in mind) suggesting that he could have

misunderstood what he was being asked to do.                    In fact, as noted

above, Rivera-Garcia stipulated to the fact that he and his

codefendant "agreed to provide 'armed protection' for a drug

transaction on behalf of a person who they both thought was a drug

trafficker."       Thus, it would be difficult to conclude, on this

record, that the government overreached by duping Rivera-Garcia

into participating in the drug deal.

            Nor does the record establish that the government coerced

his participation.        Rivera-Garcia says that, upon arriving at the

apartment, he was locked in with the "drug dealers," leaving him

with the Hobson's choice of either staying until the drug deal was

over or attempting to shoot his way out, but that fact does not

explain how he came to be there in the first place.                   And the $2,000

that   he   was    paid   does    not,   on   this       record,      seem   like   so

disproportionate       an    inducement       as        to    imply    governmental

overreaching.       See Mosley, 965 F.2d at 912 (noting that "[v]ery

large financial inducements . . . have also amounted to sufficient

affirmative       coercion   to   contribute       to    an   outrageous     conduct

holding," but that "coercion of any type must be particularly

egregious before it will sustain an outrageous conduct defense").


                                     -11-
             In any event, we do not suggest that Rivera-Garcia could

not   have    prevailed   on   a   properly   supported,    timely    raised

outrageous-misconduct claim.       But he failed to raise such a claim

below.    That oversight not only impacts our standard of review on

appeal, but also means that he relinquished the opportunity to

develop evidentiary support for his claim, which is a significant

handicap under the highly contextual, fact-specific outrageous-

misconduct doctrine.3     See United States v. Nunez, 146 F.3d 36, 38

(1st Cir. 1998) (affirming the denial of a pretrial motion to

dismiss   that   lacked   evidentiary      support   and   noting    that   an

outrageous-misconduct determination "must be rooted in the record"

(quoting Santana, 6 F.3d at 6) (internal quotation mark omitted)).

Thus, we are left with "the belated factual proffer contained in

[Rivera-Garcia]'s appellate brief," id., some of which, as noted,

contradicts the stipulation in his plea agreement.           On the record

before us, it is neither "clear or obvious," Puckett, 556 U.S. at

135, that the government's conduct in this case was "shocking to

the universal sense of justice," Santana, 6 F.3d at 4 (quoting

Russell, 411 U.S. at 432). Because Rivera-Garcia cannot clear this

very high bar, he cannot show plain error, and we therefore reject

his outrageous-misconduct claim.


      3
          Of course, by pleading guilty, Rivera-Garcia also forsook
the chance to argue entrapment at trial. Cf. Luisi, 482 F.3d at 59
("[E]ven though the government's actions have risked giving the
defendant a viable entrapment claim, it is another thing entirely
to say that the conduct was 'outrageous.'").

                                    -12-
                       III.   Conclusion

          For the foregoing reasons, we affirm Rivera-Garcia's

conviction.




                              -13-
