          United States Court of Appeals
                     For the First Circuit



Nos. 14–1149
     14–1244


                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

  SANTOS J. MIRANDA-MARTINEZ, a/k/a Santitos, a/k/a Chiquitin,

                      Defendant, Appellant.



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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]



                             Before

                   Kayatta, Selya, and Barron,
                         Circuit Judges.



     Raymond E. Gillespie on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, Unites States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, on brief for appellee.
June 24, 2015
              KAYATTA,   Circuit Judge.          Santos J. Miranda-Martinez

("Miranda") appeals his sentence following his guilty plea to drug

trafficking crimes.      He argues that he is entitled to resentencing

because the government breached the terms of his plea agreement,

and because the district court erroneously imposed a two-level

firearm enhancement under the United States Sentencing Guidelines.

Finding neither argument persuasive, we affirm.

                                I.    Background

              Miranda was indicted in 2011 in the District of Puerto

Rico for conspiring to import cocaine into the United States (count

one)   and    conspiring   to     possess      cocaine    with   the   intent   to

distribute (count two). In 2012, a second indictment charged that,

with respect to a different conspiracy, Miranda conspired to

possess      heroin,   cocaine,      and   marijuana     with    the   intent   to

distribute (count one); aided and abetted the distribution of those

controlled substances (counts two through four); and conspired to

possess firearms in furtherance of a drug trafficking crime (count

five).    At Miranda's request, the two cases were consolidated for

his change of plea hearing and sentencing.               Miranda pled guilty to

count one in both indictments pursuant to a plea agreement with

the government.




                                       - 3 -
            The district court sentenced Miranda to 293 months'

imprisonment for count one in each of the two cases, with the terms

to be served concurrently, and dismissed the remaining counts in

both indictments.        The district court calculated the guidelines

range using a total offense level above that recommended by the

parties    in   the   plea     agreement,     and   also    imposed   a   firearm

enhancement not contemplated in the agreement, thereby permitting

Miranda    to    appeal      his   sentence     notwithstanding       the    plea

agreement's     waiver    of   appeal   clause.1      See    United   States   v.

Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010).

                                II.   Discussion

A.   The Alleged Breach of the Plea Agreement

            Miranda first argues that the government violated the

plea agreement when one of the prosecutors stated facts known to

the government relating to his possession of firearms during the

time period alleged in the second indictment.               Because Miranda did

not make this argument in the district court, we review for plain

error.    See Puckett v. United States, 556 U.S. 129, 133–34 (2009).



     1  The plea agreement stated that "[t]he defendant hereby
agrees that if [the district court] accepts this agreement and
sentences the defendant according to its terms, conditions, and
recommendations, the defendant waives and surrenders the right to
appeal the judgment and sentence in this case."

                                      - 4 -
While Puckett stated that plain error review applies "in the usual

fashion" to forfeited arguments that the government breached a

plea agreement, id. at 134, the Supreme Court also observed in

Santobello v. New York, 404 U.S. 257, 263 (1971), that the fault

with respect to the government's failure to uphold its end of a

plea agreement "rests on the prosecutor, not on the sentencing

judge."   And we have ourselves said the same.     United States v.

Riggs, 287 F.3d 221, 225 (1st Cir. 2002) ("Although plain error

review usually applies to errors committed by the court, we have

also assessed governmental breaches of plea bargains, in the

absence   of   a   contemporaneous   objection,   under   this   same

standard.").   In any event, for the following reasons, we find

that the prosecutor's comments at Miranda's sentencing hearing

likely did not violate the plea agreement, and therefore could not

have constituted plain error.

     1.   The Plea Agreement

     The plea agreement stipulated that Miranda's base offense

level should be thirty-six due to the amount and type of controlled

substances involved in the conspiracies, and that a downward

variance of three levels should apply due to his acceptance of

responsibility.    The plea agreement also stipulated that the

parties "agree that no further adjustments or departures to the

                                - 5 -
defendant's base offense level shall be sought," and it obligated

each party to recommend a sentence within the guidelines range

corresponding to the agreed-upon total offense level of thirty-

three.      That recommendation did not bind the district court, even

once     it   accepted   the    guilty    plea.       See   Fed.   R.        Crim.

P. 11(c)(1)(B).        Rather, the agreement specified that Miranda

understood "that the sentence will be left entirely to the sound

discretion of the [district court] in accordance with the advisory

Sentencing Guidelines."

       2.     The Prosecutor's Statements

              The presentence investigation report ("PSR") conveyed

that a Drug Enforcement Administration agent learned that Puerto

Rico police seized a semi-automatic handgun from Miranda in 2007,

that they seized guns from his co-conspirators, and that another

one of his co-conspirators carried a gun throughout the period of

time covered by the conspiracy in the second indictment.                 As we

explain in more detail below, those facts, if accepted by the

district      court,   called   for   a   two-level   enhancement       in    the

guidelines sentencing calculations.           See U.S.S.G. § 2D1.1(b)(1).

Miranda objected to the PSR's reliance on such an enhancement.                 In

addressing that objection at the beginning of the sentencing

hearing, the district court observed of its own account that the

                                      - 6 -
PSR recited that "members of the Police of Puerto Rico seized a

semiautomatic handgun from [Miranda].       He denies it.     I believe

there's a record for that; so, your objection is denied."       Counsel

then argued the point.    He asserted that Miranda himself had no

gun; but conceded that "[i]n this case, every single defendant

[other than Miranda] . . . , they did possess firearms," and that

another defendant who accompanied Miranda to a meeting had a

firearm.   Counsel also argued that the connection between this

case and the alleged 2007 seizure of a gun from Miranda himself

was unclear, even if the seizure occurred.

           When   Miranda's   counsel    finished   his   argument,   the

following colloquy ensued:

           District Court:    Government?

           . . . .

           Prosecutor Castellón-Miranda:    . . . .    We
           were the prosecutor [sic] assigned to the case
           of 12-769, which arises from the drug
           conspiracy in Juana Díaz.       [Miranda] was
           identified as one of the leaders of this
           organization,    and    several    cooperators
           identified the defendant as one that would go
           to the drug point armed and who would carry
           firearms in this case. So, the fact that he
           was arrested, it was also a fact known to the
           witnesses of the Government. And I understand
           that the weapon was seized by the Police of
           Puerto Rico also.




                                 - 7 -
          Defense Counsel: Can I have a moment with the
          prosecutor, Judge.

          (Government and defense counsel confer.)

          Prosecutor Hernández-Vega: And, Your Honor,
          at this time AUSA Olga Castellón clarified
          what   the   evidence   in   that    case   was.
          Nonetheless, as part of the plea negotiations,
          the government reached a plea agreement in
          which that enhancement was not contemplated;
          and   the   total   offense    level    was   in
          consideration of the amount of drugs in
          relation to the cases and his acceptance of
          responsibility for a total offense level of
          33. Nonetheless, with candor to the Court, we
          have to indicate what the evidence is and how
          the incident relates to the offense.

          Defense Counsel:   Did you mention that with
          respect to the plea agreement this was not
          contemplated in it.

          Prosecutor Hernández-Vega:   Yes.

          The Court: That's what she stated. Of course
          I was very clear to counsel and the defendant
          that I am not bound by the plea agreement.
          And there is evidence that the government has
          to the effect that he did possess weapons
          during -- sometime during the conspiracy in
          this case. So, the objection is denied.

          In thereafter sentencing Miranda, the district court

included the two-level enhancement in its guidelines calculations,

explaining its reasoning as follows:

          As it was foreseeable that dangerous weapons,
          including firearms, would be possessed during
          the drug trafficking conspiracy, a two-level
          increase is warranted . . . . As you notice,

                               - 8 -
              Counsel, if it was foreseeable that firearms
              would be possessed.

              Miranda    now   argues     on    appeal    that    Assistant    U.S.

Attorney Castellón's statements breached the government's promise

not to seek any upward enhancements.

       3.     Analysis

              The applicable law bearing on the prosecutor's conduct

seeks to balance competing aims. On the one hand, several opinions

of this court expressly provide that "[t]he government's review of

the facts of the case . . . cannot constitute a breach of the plea

agreement [when] they [are] relevant to the court's imposition of

sentence; no limitation can be placed, by agreement or otherwise,

on this information."          United States v. Gonczy, 357 F.3d 50, 53

(1st Cir. 2004); see also United States v. Saxena, 229 F.3d 1, 6

(1st   Cir.    2000)     (noting   that   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" (alteration

in original) (internal quotation marks omitted)); United States v.

Hogan, 862 F.2d 386, 389 (1st Cir. 1988) (sentencing judge "has a

right to expect that the prosecutor and the probation department"


                                        - 9 -
will "give him all relevant facts within their ken"). Thus, "[t]he

mere furnishing" of facts concerning the background, character,

and conduct of the defendant "gives us little pause."          Saxena, 229

F.3d at 6.

             On the other hand, we have acknowledged that certain

factual   "omission[s],   helpful   to   the   defendant,"    may   be   "an

implicit part of the bargain" in a plea agreement.           United States

v. Yeje-Cabrera, 430 F.3d 1, 28 (1st Cir. 2005).         In Gonczy, for

example, we held that a prosecutor breached a plea agreement when

he began a sentencing argument by recommending a sentence according

to the plea agreement, but then went on to say that the "defendant

was the brains behind [the] operation," that "his conduct ruined

many lives," that the "defendant basically laughed in the face of

law enforcement," and that "the defendant at a minimum deserves

what the guidelines provide for and those are his just deserts."

357 F.3d at 53–54 (internal quotation marks omitted).          In sum, the

government's "solemn duty to uphold forthrightly its end of any

bargain that it makes in a plea agreement, and its equally solemn

duty to disclose information material to the court's sentencing

determinations . . . . admittedly can tug in different directions."

Saxena, 229 F.3d at 5 (citations omitted).




                                - 10 -
          The precise terms of the plea agreement in this case

help resolve these competing tugs.      The agreement does not limit

the information that the prosecutor can convey.    Rather, it limits

the purpose of her remarks: no enhancement above the agreed level

"shall be sought."   Such a prohibited purpose plays no causal role

when a prosecutor accurately answers a judge's query by citing

objective facts responsive to the question, or rebuts factual

assertions made by defense counsel. Conversely, when a prosecutor,

as in Gonczy, gratuitously offers added detail garbed in implicit

advocacy, a court might well find that the prosecutor is actually

seeking a result in a manner that breaches the agreement.

          In gauging the equilibrium struck by these competing

tugs in this case, we observe first that the district court--not

the prosecutor--raised the subject of the challenged enhancement

based on its reading of the PSR.   After defense counsel explained

his view of the facts relevant to that inquiry, and in response to

an apparent invitation by the court, AUSA Castellón explained in

non-argumentative terms her knowledge of the basis for the PSR's

recommendation. Then, and without any verbal winks, AUSA Hernández

twice voiced full support for including no enhancement.

          Defense counsel's lack of objection in this context is

less like an oversight that merely triggers plain error review,

                               - 11 -
and more like a real time acknowledgement that the prosecutor was

responding forthrightly to the judge's inquiry, as was her duty,

rather than seeking a result in breach of the agreement.                 Defense

counsel was familiar with the terms of the agreement, the agreement

was     expressly   mentioned,      and    counsel    apparently      secured     a

reiteration by the prosecutor of the government's commitment in

order    to   eliminate    any    possible     negative   inference    from     its

response to the discussion of the gun possession issue.                  In this

context, it seems fair to say that the lack of objection was not

a mistake by counsel in the face of a plain breach, but was instead

a recognition by competent counsel that the agreement was not being

breached at all.

              Our rejection on plain error review of the claim that

the prosecutor breached the plea agreement stands as well on the

fact that the prosecutor's words very likely had no effect on the

outcome. See Puckett, 556 U.S. at 141–42 (stating that a defendant

who does not receive the benefits of his bargain due to the

government's breach cannot prevail on the third prong of plain

error review when "he likely would not have obtained those benefits

in any event"); United States v. Olano, 507 U.S. 725, 734 (1993)

(defendant     "bears     the    burden   of    persuasion   with   respect      to

prejudice" on plain error review).             In definitively announcing and

                                     - 12 -
explaining his decision to adopt a two-level enhancement for

possession   of   a   firearm,   the   district    court   cited       only   the

acknowledgement of the defendant and his counsel that, as described

in the PSR, co-conspirators possessed guns, which the trial court

thought was eminently foreseeable.         Nothing the prosecutor said at

the hearing even bore on the possession of guns by co-conspirators.

Simply put, there is no non-speculative basis for concluding that

Miranda would not have received the two-level enhancement but for

the prosecutor's statement confirming her belief in the PSR's

statement that Miranda himself had a gun.

           For the foregoing reasons, Miranda's plea agreement

argument fails.

B.   The Firearms Enhancement

           Miranda    next   challenges     the   merits   of    the   district

court's decision to impose the two-level enhancement under United

States   Sentencing     Guidelines     §   2D1.1(b)(1).         Repeating     the

argument that he made in the district court, Miranda contends that

the evidence was too sparse and insufficiently corroborated to

establish the type of foreseeable gun possession that would support

the enhancement.      We review the district court's factual findings

at sentencing for clear error, and we give due deference to its

application of the sentencing guidelines to the facts.                   United

                                  - 13 -
States v. Carrero-Hernández, 643 F.3d 344, 349 (1st Cir. 2011).

          Section 2D1.1(b)(1) applies when a dangerous weapon was

possessed during the course of a drug trafficking offense.      "To

warrant the enhancement, the defendant does not need to have

possessed the weapon [himself] or even to have known about it, it

just must be reasonably foreseeable that a co-conspirator would

possess a weapon in furtherance of the criminal activity."   United

States v. Greig, 717 F.3d 212, 219 (1st Cir. 2013).          If the

government satisfies its initial burden of establishing that the

defendant or his co-conspirator possessed a weapon during the

offense, the defendant may avoid application of the enhancement if

he can show that it is "clearly improbable that the weapon was

connected with the offense."   U.S.S.G. § 2D1.1 cmt. 11(A); United

States v. Anderson, 452 F.3d 87, 90–91 (1st Cir. 2006).      And we

have often observed that "firearms are common tools" in drug

trafficking conspiracies involving large amounts of drugs such as

the two in which Miranda admits he participated.   United States v.

Bianco, 922 F.2d 910, 912 (1st Cir. 1991).

          After hearing argument at the sentencing hearing, the

district court found that it was "foreseeable that dangerous

weapons, including firearms, would be possessed during the drug

trafficking conspiracy."   In support of this finding, the district

                               - 14 -
court   referred   to   defense    counsel's     acknowledgment    that   co-

conspirators possessed firearms as described in the PSR.                  The

stipulated   version    of   the   facts    in   the   plea   agreement   also

reflected that, with respect to each indictment, Miranda and his

co-conspirators engaged in transactions for a thousand or more

kilograms of cocaine at a time.        Finally, Miranda did not object

to allegations in the PSR that enforcers in the organization used

guns to protect the organization's members and its proceeds.

           Without clearly specifying which of these facts he is

challenging, Miranda argues that the district court lacked a

sufficient evidentiary basis to impose the firearm enhancement

because the evidence was "inherently suspect," "insufficiently

corroborated," and "quantitatively sparse."               Using the above-

described precedent as our guide, however, we easily conclude that

there was no error in the district court's decision to impose the

enhancement.   Based on the evidence the district court had at its

disposal, it is unsurprising that, as stipulated in the plea

agreement, officers discovered a pistol hidden in a vehicle driven

by Miranda's co-conspirator at the scene of one of the drug

transactions, and that a pistol was seized from the vehicle of

another co-conspirator two days later.




                                   - 15 -
          Miranda   makes    a     last-ditch   effort   at   vacating     the

enhancement by stating that "[t]he finding cannot be based on

foreseeability related to a leadership role, as was asserted in

the PSR, because the judge at sentencing expressly denied that

recommendation."    While evidence that a defendant served as a

conspiracy's leader might support the conclusion that he could

have reasonably foreseen the activities (including possession of

a firearm) undertaken by his co-conspirators, such a finding is

certainly not a categorical prerequisite for creating a reasonable

probability that possession of a firearm was foreseeable.                Here,

irrespective of whether Miranda led the conspiracy, he has failed

to show that it was clearly improbable that the firearms he and

his   co-conspirators   possessed       were    connected     to   the    drug

conspiracies.

                            III.    Conclusion

          The judgment of the district court is affirmed.




                                   - 16 -
