                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 09-2622

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                       JUAN A. RUIZ-GONZÁLEZ,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

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


                                  Before

                      Lipez, Stahl and Howard,
                           Circuit Judges.



     Maria Soledad Ramirez Becerra, by Appointment of the Court, on
brief for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa
Emilia Rodríguez-Vélez, United States Attorney, on brief for
appellee.



                            August 25, 2011
           STAHL, Circuit Judge.             The defendant, Juan A. Ruiz-

González, pled guilty to conspiracy to distribute and/or possess

with the intent to distribute controlled substances in violation of

21 U.S.C. §§ 841(a)(1), 846, and 860.             He was sentenced by the

district court to 72 months in prison and now appeals, arguing that

the   district   court    erred   in    considering    his   prior   criminal

convictions in reaching the sentencing decision.              Ruiz-González

further asserts that the amendment to the sentencing guidelines

promulgated in response to the Fair Sentencing Act of 2010 ("FSA")

should apply retroactively to him. For the reason explained below,

we dismiss this appeal.

                          I.   Facts & Background

           On    July    28,   2009,   Ruiz-González    appeared     before   a

magistrate judge to plead guilty, pursuant to a plea agreement, to

count one of a multi-count indictment.                After a hearing, the

magistrate judge recommended that the district court accept the

guilty plea, and the district court subsequently followed that

recommendation.

           The plea agreement described the crime to which the

defendant pled as follows:

           [The defendant] and other persons, did
           knowingly    and    intentionally,    combine,
           conspire, and agree . . . to knowingly and
           intentionally possess with the intent to
           distribute and/or to distribute controlled
           substances, to wit: in excess of one (1)
           kilogram of heroin . . .; and/or in excess of
           fifty (50) grams of cocaine base . . .; and/or

                                       -2-
          in   excess   of  five   (5)   kilograms   of
          cocaine . . .; and/or in excess of one hundred
          (100) kilograms of marijuana . . . within one
          thousand (1,000) feet of the real property
          comprising a public or private school, as
          prohibited by [§§ 841(a)(1), 860].      All in
          violation of [§ 846].

The agreement specified that, "based on the stipulated and agreed

amount of narcotics possessed by the defendant, that is, at least

thirty-five (35) grams but less than fifty (50) grams of cocaine

base, the penalty for the offense shall be, a term of imprisonment

of not less than five (5) years . . . ."    Although the agreement

set the defendant's total offense level at 26, the parties did not

stipulate to a criminal history category ("CHC").    Instead, they

agreed that (1) if the defendant was found to be in CHC I, the

defendant could request a sentence of 63 months and the government

could recommend a sentence of 78 months; (2) if the defendant was

found to be in CHC II, the defendant could request a sentence of 70

months and the government could recommend a sentence of 78 months;

and (3) if the defendant was found to be in CHC III or higher, both

parties agreed to recommend a sentence at the low end of the

guideline range.    Notably, the agreement included a waiver of

appeal that read as follows: "The defendant hereby agrees that if

[the district court] accepts this Plea Agreement and sentences him

according to its terms, conditions and recommendations, defendant

waives and surrenders his right to appeal the judgment and sentence

in this case."


                               -3-
            The pre-sentence investigation report ("PSR") concluded

that the defendant fell into CHC I with a total offense level of

26, and therefore his guideline range was 63 to 78 months.             The PSR

also listed several incidents that resulted in criminal convictions

for   the   defendant    between   1983    and   1993.    These   included     a

controlled substance violation and a conviction for possession of

a firearm without authorization.           Because of their age, however,

these convictions did not yield any criminal history points.

            On October 30, 2009, the district court convened a

sentencing    hearing.      In   keeping    with   the   terms   of   the   plea

agreement, the government urged the court to impose a 78-month

sentence and the defendant requested a 63-month sentence.                    The

district court acknowledged that the defendant's prior convictions

did not yield any criminal history points, but explained that those

convictions were nonetheless relevant to the sentencing decision:

            If [the defendant] had been brought to this
            court . . . [there] would be consecutive
            violations of drugs, and a weapon, and he
            would have been considered a felon in
            possession, if it had been brought to this
            court, because he has a controlled substance
            violation of 10/10/87 . . . and he has a
            weapons violation . . . . also . . . he has a
            domestic violence case, which was reduced to a
            simple aggression back in 1993 which this
            court is also not counting, but I am still
            concerned because he continues with some
            proclivity to get himself involved in drug
            cases.

            After finding that the defendant's total offense level

was 26 and his CHC was I, the district court imposed a special

                                     -4-
assessment of $100.00 and sentenced the defendant to 72 months in

prison, followed by 8 years of supervised release.1         The district

court explained that this sentence was based on the plea agreement

and the factors listed in 18 U.S.C. § 3553(a).         The district court

again cited the defendant's prior criminal convictions and noted

that it was "impressed with the [defendant's] proclivity to drug

cases, [his] proclivity to use weapons, which although those

violations did not receive any points, it allows the Court to go to

the middle range [of the applicable guideline range]."

          After   the   sentence    was   announced,    defense   counsel

objected to the district court's consideration of the defendant's

prior convictions, arguing that "the guidelines say when a crime

[was] committed over 15 years [ago], it should not be counted."

The district court clarified that it had only considered the

controlled substance and weapon convictions, and then explained, "I

didn't count [the convictions] for criminal history.              I only

counted [them] [in determining] where I'm placing him within [the

guideline range] . . . ."    Shortly after the sentencing hearing,

the defendant filed a motion for reconsideration and/or correction




     1
      The transcript of the sentencing hearing quoted the district
court as describing the defendant's guideline range as "63 to 68."
It is unclear whether this reflects a typographical error or a
misstatement by the district court. Regardless, other portions of
the transcript indicate that the district court was well aware that
72 months was in the middle of the applicable guideline range.

                                   -5-
of sentence, which the district court denied after holding another

hearing.

                             II.    Discussion

              A waiver of appeal will generally be honored if it was

knowing and voluntary.      Sotirion v. United States, 617 F.3d 27, 33

(1st Cir. 2010); United States v. Teeter, 257 F.3d 14, 24 (1st Cir.

2001).   However, "even if the waiver is knowing and voluntary, we

retain discretion not to enforce the waiver if it would result in

a 'miscarriage of justice.'"         Sotirion, 617 F.3d at 33 (quoting

Teeter, 257 F.3d at 25).

              The defendant does not dispute that he waived his right

to   appeal    knowingly   and   voluntarily.    Rather,   the   defendant

contends that enforcing the waiver would constitute a miscarriage

of justice.       Specifically, the defendant takes issue with the

district court's consideration of his twenty-year-old criminal

convictions.     The defendant claims that these convictions "w[ere]

not sufficient to conclude that [the defendant] will repeat the

conduct in the future" and that the district court's reasoning

"resulted in a penalty that was harsher than necessary to achieve

the purposes of sentencing."        He argues that the "sentence [was]

procedurally incorrect because the [district court's] explanation

as to why the recommended sentence of 63 months . . . was not

reasonable is not reliable[,]" and the sentence was substantively

unreasonable because he deserved a more lenient sentence.


                                     -6-
            "Th[e] miscarriage of justice exception is meant only for

'egregious cases' and is to be applied 'sparingly and without undue

generosity.'"          Id. at 36 (citing Teeter, 257 F.3d at 25-26).                 It

"'requires a strong showing of innocence, unfairness, or the like,'

and is 'demanding enough to prevent defendants who have agreed to

waive     their        right    to      appeal      from     successfully     pursuing

garden-variety         claims     of    error[.]'"         Id.   (internal   citations

omitted).        In determining whether the miscarriage of justice

threshold has been reached, this court considers, among other

things,     "the        clarity        of    the    error,       its    gravity,   its

character . . ., the impact of the error on the defendant, the

impact of correcting the error on the government, and the extent to

which the defendant acquiesced in the result." Teeter, 257 F.3d at

26.     For example, we have observed that a miscarriage of justice

occurs    when     a    sentencing          court   considers     a    constitutionally

impermissible factor such as the defendant's race.                      Id. at 25 n.9.

A miscarriage of justice may also occur when the district court

plainly errs in sentencing a defendant, such as where the sentence

exceeds the maximum penalty permitted by law.                      Id. at 25 n.10.

            In the case at hand, enforcing the waiver would not

result in a miscarriage of justice.                   First, neither the district

court's consideration of the defendant's old convictions, nor its

explanation that its within-the-guideline sentence was based in

part on those convictions, were procedural errors giving rise to a


                                              -7-
miscarriage of justice.   Not only does the defendant fail to cite

any authority supporting the argument that the district court's

reasoning was procedurally flawed, but he concedes in his brief

that there is "no limitation on the information concerning the

background character and conduct of [the defendant] [that may be

considered] for the purpose of imposing a sentence."    See also 18

U.S.C. § 3661 ("No 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."); id. § 3553(a)(1) (instructing court to consider, among

other things, "the history and characteristics of the defendant");

U.S.S.G. § 1B1.4 ("In determining the sentence to impose within the

guideline range . . . the court may consider, without limitation,

any information concerning the background, character and conduct of

the defendant, unless otherwise prohibited by law.").   Regardless,

the defendant certainly does not explain how any such procedural

error was so grave or egregious as to cause a miscarriage of

justice, and we cannot see how allowing this sentence to stand

would result in a miscarriage of justice.

          Second,   the   72-month    sentence   was   substantively

reasonable.   Although a sentence within the applicable guideline

range is not presumed reasonable, a defendant challenging the

substantive reasonableness of such a sentence bears a heavy burden,


                                -8-
even when the right to appeal has not been waived.        See United

States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir.), cert. denied,

180 L. Ed. 2d 260 (2011).     The defendant here has not met that

burden.     To the extent he argues that the sentence did not

appropriately   reflect   certain   mitigating    considerations,   we

disagree.   We see nothing about the defendant's circumstances that

required the district court to impose a more lenient sentence.

Just because the district court did not weigh the mitigating

factors as heavily as the defendant would like, it does not mean

that the sentence was substantively unreasonable.      Cf. id. at 32

("That the court below chose not to give greater weight to [various

mitigating factors] . . . represented a judgment call. Within wide

margins, not approached here, such judgment calls are for the

sentencing court, not for this court.").         Nor do we think the

sentence was substantively unreasonable because the district court

considered the defendant's prior convictions.      Although more than

twenty years elapsed between those convictions and the guilty plea

in the instant case, it was not unreasonable for the district court

to reject a bottom-of-the-range request — in favor of a 72-month,

middle-of-the-range sentence — because of the defendant's criminal

record and what that record portends for the defendant's ability to

avoid criminal activity in the future.   See § 3553(a) (instructing

sentencing court to consider, among other things, "the history and

characteristics of the defendant" and "the need for the sentence


                                -9-
. . . to protect the public from further crimes of the defendant").

In short, the district court advanced "a plausible sentencing

rationale" to support "a defensible result," see West v. United

States, 631 F.3d 563, 572 (1st Cir. 2011), and the sentence was

substantively sound.

            Lastly, we turn to the defendant's claim that changes to

the sentencing guidelines promulgated pursuant to the FSA should

apply retroactively to him.            The defendant was sentenced in 2009.

The FSA was enacted on August 3, 2010, the emergency guideline

amendment    promulgated in        response      to   the   FSA    took      effect   on

November    1,   2010,     and   the    permanent       guideline      amendment      is

scheduled to take effect on November 1, 2011. See United States v.

Douglas, 644 F.3d 39 (1st Cir. 2011) (setting forth the timeline of

the relevant developments).         As the defendant acknowledges, absent

some   directive     from    Congress       or    the    Sentencing       Commission

("Commission"), a sentencing court should generally apply the

guidelines that "are in effect on the date the defendant is

sentenced." § 3553(a)(4)(A)(ii). We recognize that the Commission

recently    voted    "to    give   retroactive        effect      to   its    proposed

permanent amendment to the federal sentencing guidelines that

implements the [FSA]."       News Release, U.S. Sentencing Comm'n, U.S.

Sentencing Comm'n Votes Unanimously to Apply Fair Sentencing Act of 2010 Amendment

to the Fed. Sentencing Guidelines Retroactively (June 30, 2011) (available at

http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Releases/201106


                                         -10-
30_Press_Release.pdf); see also U.S. Sentencing Comm'n Notice of Final Action

Regarding Amendment to Policy Statement § 1B1.10, 76 Fed. Reg. 41332 (July 13,

2011); U.S. Sentencing Comm'n Notice of Submission to Congress of Amendments to

Sentencing Guidelines and Request for Comment, 76 Fed. Reg. 24960 (May 3, 2011).

Unless Congress halts the Commission's plans, retroactivity will

accompany the permanent amendment when that amendment takes effect

on November 1, 2011. News Release, U.S. Sentencing Comm'n, supra.

No matter how this turns out, however, the defendant's request for

resentencing under the new guideline regime is premature.                    Cf.

United States v. Williams, 630 F.3d 44, 52-53 (1st Cir. 2010)

(concluding that appellant's request for retroactive application of

guideline amendment was premature because the Commission had yet to

issue the permanent guideline amendment or determine whether that

amendment would apply retroactively), cert. denied, 131 S. Ct. 2122

(2011).    If and when the permanent amendment becomes retroactive,

the defendant "is free to petition for resentencing pursuant to 18

U.S.C. § 3582(c)(2)."2       Cf. id. at 53.

                              III.   Conclusion

            For the foregoing reasons, the defendant's appeal is

dismissed.




      2
      We express no opinion about the merits of any such future
petition.

                                     -11-
