          United States Court of Appeals
                     For the First Circuit


No. 16-2152

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    SANTOS MARTE-DE LA CRUZ,

                      Defendant, Appellant.


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

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


                             Before

                Torruella, Thompson, and Kayatta,
                         Circuit Judges.


     Robert Herrick and Nicholson Herrick LLP, on brief for
appellant.
     Mainon A. Schwartz, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.


                        December 4, 2017
           KAYATTA, Circuit Judge.            Pursuant to a plea agreement,

Santos Marte-de la Cruz pled guilty to attempted illegal reentry

into the United States following removal subsequent to a conviction

for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2).

He was sentenced to thirty-three months' imprisonment.                  He now

appeals his conviction and sentence on the basis that his prior

conviction was not an aggravated felony or crime of violence.

Because Marte-de la Cruz waived his right to appeal as part of his

plea agreement, we dismiss his appeal.

                                 I.   Background

           We       draw   the   facts   from    the   parties'    agreed-upon

statement, attached to the plea agreement.                 In January 2016, a

United States Coast Guard patrol intercepted a vessel travelling

toward Puerto Rico.        Marte-de la Cruz was on board.         He identified

himself   as    a    Dominican    Republic      national   and    presented   no

documentation that would permit him to enter the United States or

remain therein. The authorities subsequently learned that in 2010,

Marte-de la Cruz had been charged with robbery in the Superior

Court of San Juan, Puerto Rico, and sentenced to five years'

imprisonment.        Subsequent to that conviction, he was served with

an order of removal and on September 24, 2014, he was removed from

the United States.

           On January 13, 2016, a criminal complaint issued against

Marte-de la Cruz. The same day, counsel was appointed to represent


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him.    On May 2, 2016, following Marte-de la Cruz's waiver of his

right   to   an     indictment,      the   United   States    filed   a   criminal

information, charging Marte-de la Cruz with violating 8 U.S.C.

§ 1326(b)(2), which criminalizes re-entry or attempted re-entry

into the United States by an individual who was previously removed

following a conviction for an aggravated felony.                  The same day,

Marte-de la Cruz filed a plea agreement.

             The plea agreement contained the following provisions:

First, Marte-de la Cruz agreed to plead guilty to one count of

attempted    illegal       reentry    following     removal   subsequent     to   a

conviction        for     an     aggravated     felony,      in   violation       of

section 1326(b)(2).            Second, the parties agreed to recommend that

Marte-de la Cruz's total offense level be set at nineteen.                     They

arrived at this figure by starting with a base offense level of

eight, adding sixteen levels for the fact that Marte-de la Cruz

had been previously removed following a conviction for a crime of

violence,     and       subtracting    three    levels    for     acceptance      of

responsibility and two more levels for participation in a fast-

track plea program. Third, Marte-de la Cruz agreed "that the facts

contained in the attached government's version of facts are true

and correct, and that had the matter proceeded to trial, the United

States would have proven those facts beyond a reasonable doubt."

Finally, the agreement stated that Marte-de la Cruz "knowingly and

voluntarily waive[d] the right to appeal the judgment and sentence


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in this case, provided that [he was] sentenced in accordance with

the terms and conditions set forth in the Sentence Recommendation

provisions of th[e] Plea Agreement."         The agreement was signed by

both Marte-de la Cruz and his attorney, and contained further sworn

statements from each of them stating that Marte-de la Cruz's

attorney had discussed the plea agreement with him in Spanish,

that it had been translated for Marte-de la Cruz, and that Marte-

de la Cruz "ha[d] no doubts as to the contents of the agreement."

           At his change-of-plea hearing, Marte-de la Cruz again

affirmed that the plea agreement and attached document had been

translated, that his attorney had explained the documents to him,

and that he understood the terms of the agreement and attached

document. The government was asked to describe the essential terms

of the agreement, and stated that the parties had agreed to a base

offense level of eight and an increase of sixteen levels "because

the Defendant was previously removed after a conviction for a crime

of   violence,"   accompanied    by     reductions     for    acceptance   of

responsibility and his participation in a fast-track disposition

program, for a total offense level of nineteen. Marte-de la Cruz's

attorney   was    asked   if    he     agreed   with    the     government's

representations and Marte-de la Cruz himself was asked if the

government had accurately described the agreed-upon sentencing

recommendations; both answered in the affirmative.            The magistrate

judge also asked: "are you pleading guilty of your own free will


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because you are, in fact, guilty?"               Again, Marte-de la Cruz

responded in the affirmative. Later in the hearing, the magistrate

judge stated:       "I want to point out to you that . . . your plea

agreement[] contain[s] a waiver-of-appeal paragraph, and, in that,

you are agreeing to waive your right to appeal both the judgment

and the sentence."      He then asked if Marte-de la Cruz "voluntarily

agree[d] to waive [his] right to appeal both [his] conviction and

[his] sentence," and Marte-de la Cruz again responded that he was

aware of this waiver and agreed to it.               The magistrate judge

specifically noted that Marte-de la Cruz had been charged with

attempting     to    enter   the    United    States      following   removal

"subsequent to a conviction for an aggravated felony" and Marte-

de la Cruz acknowledged that he was pleading guilty to this

specific offense.      The magistrate judge then asked the government

to state its version of the facts, which included the statement

that "background checks . . . reveal[] that . . . Marte-de la Cruz

. . . was arrested and charged for robberies, and, on March 24,

2010, he was sentenced to five years imprisonment in the Superior

Court of San Juan, . . . making the crime an aggravated felony

under   the   Immigration    and   Nationality     Act."     Following     this

statement, the magistrate judge asked whether Marte-de la Cruz

"agree[d] with and admit[ted] to all of the facts the Prosecutor

just    described."      Again,    Marte-de   la   Cruz    answered   in    the

affirmative.    The magistrate judge recommended that the district


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court accept the plea of guilty and the district court accepted

the recommendation.

          The matter proceeded to sentencing on August 18, 2016.

At sentencing, the district court expressed concern about Marte-

de la Cruz's prior conduct because his prior conviction "was not

only a burglary, but a burglary entering into a house of a lady

and pointing a knife at her."        The district court was troubled

that Marte-de la Cruz had been permitted to take part in the fast-

track plea program given his prior conduct, but the government

noted that it was aware of the conduct and Marte-de la Cruz's

counsel stated "the criminal complaint reflects the fact that the

government knew about the robbery conviction -- actually, an

aggravated felony."     Following this reassurance, the district

court   sentenced   Marte-de    la   Cruz   to   thirty-three   months'

imprisonment.   It also told Marte-de la Cruz that "[i]n this

particular case, you agreed that if the Court sentenced you to

Level 19 you were waiving your right to appeal.      And in this case,

the Court has sentenced you not only to Level 19, but also to the

lower end of 19, which is what the parties specifically agreed."

          Four days later, Marte-de la Cruz filed a notice of

appeal from his conviction and sentence.

                          II.    Discussion

          Marte-de la Cruz's argument on appeal is that his prior

offense was not an aggravated felony or crime of violence, despite


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agreement by the parties that it was.     Specifically, he argues

that he was convicted of second-degree burglary, not robbery, which

he contends is not an aggravated felony or crime of violence.   He

argues that the allegedly erroneous determination that his prior

conviction was for robbery resulted in two flaws in his conviction

and sentence.   First, if his prior offense was not an aggravated

felony (and he submits that Puerto Rico burglary is not), then he

was not guilty of violating 8 U.S.C. § 1326(b)(2), which only

applies to those removed following a conviction for such a felony.

Second, if his prior offense was not a crime of violence under the

relevant portion of the sentencing guidelines (again, he argues

that Puerto Rico burglary is not such a crime), his offense level

was inappropriately increased, even if his conviction itself were

valid.

          By its terms, the express appeal waiver contained in

Marte-de la Cruz's plea agreement clearly applies, a point he does

not contest. He nonetheless argues that it should not be enforced.

We disagree.

          Presentence    waivers   of    appellate    rights    are

"presumptively valid (if knowing and voluntary)."    United States

v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001).     Here, there is no

doubt that Marte-de la Cruz knew he was waiving his appellate

rights and did so voluntarily:     "[T]he written plea agreement

contains a clear statement elucidating the waiver and delineating


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its scope, and . . . the district court inquired specifically at

the change-of-plea hearing into any waiver of appellate rights."

Sotirion   v.   United    States,   617    F.3d    27,    33    (1st   Cir.      2010)

(internal quotation marks and alterations omitted).                    Marte-de la

Cruz   suggests   that    "[d]efense      counsel's      rush    to    get   a   plea

agreement signed before he ascertained the nature of Marte-de la

Cruz's prior conviction casts serious doubt on any suggestion that

Marte-de   la   Cruz's    appeal    waiver   was    knowing      and    voluntary"

(internal quotation marks and alterations omitted).                     But beyond

this perfunctory suggestion, he offers no compelling case that

there was such a rush, let alone facts sufficient to rebut the

strong presumption, supported by the explicit nature of the waiver

and the magistrate judge's repeated cautions, that the waiver was

knowing and voluntary.

            We nonetheless "retain[] inherent power to relieve the

defendant of the waiver, albeit on terms that are just to the

government, where a miscarriage of justice occurs."                    Teeter, 257

F.3d at 25–26.     We have said that this exception is to be "applied

sparingly and without undue generosity."                 United States v. Gil-

Quezada, 445 F.3d 33, 37 (1st Cir. 2006) (quoting Teeter, 257 F.3d

at 26).    It requires "a strong showing of innocence, unfairness,

or the like."     Id.    In evaluating whether a miscarriage of justice

has occurred, "we consider, among other things, the clarity of the

alleged error, its character and gravity, its impact on the


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defendant, any possible prejudice to the government, and the extent

to which the defendant acquiesced in the result."                      Id.     In this

case, however, it appears unlikely that error occurred at all.

              Marte-de la Cruz's entire case on appeal hinges on his

contention that "[t]he parties and, at times, the probation officer

labored under the false impression that Marte-de la Cruz's earlier

conviction had been for robbery," when in fact, it was for second-

degree burglary.         The government's version of the facts, the truth

of    which   Marte-de       la   Cruz   expressly    agreed     to    in     his   plea

agreement, stated that Marte-de la Cruz's prior conviction was for

robbery and described this robbery as an aggravated felony.                          At

the    change-of-plea         hearing,     the    court    and     the      government

repeatedly described Marte-de la Cruz's prior offense as robbery.

They even specifically described this robbery as an aggravated

felony, a characterization which Marte-de la Cruz affirmatively

agreed     was     correct    when   he    acknowledged     the       truth    of    the

government's version of the facts.                  And the presentence report

(PSR) likewise used the term "robbery" on multiple occasions.

              Against all of this, Marte-de la Cruz points to other

portions      of   the   PSR,     most    notably    one   which      describes      his

conviction as one for "2nd degree burglary," and the district

court's use of similar language.             However, the same portion of the

PSR lists the statute of conviction as Article 199 of the Puerto

Rico Penal Code.          Article 199 is the aggravated robbery statute


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and says nothing about burglary, whatever degree.             See 33 L.P.R.A.

§ 4827.       The    PSR   further      states,   in   describing   the   facts

surrounding Marte-de la Cruz's initial conviction, that he had

"through     the    use    of   violence    and/or     intimidation,   t[aken]

property."         This is the language of the Puerto Rico robbery

statute, not the burglary statute.                Compare 33 L.P.R.A. § 4826

(entitled "Robbery" and reading "Any person who unlawfully takes

personal property belonging to another in the immediate presence

of said person and against his/her will by means of force or

intimidation shall incur a third degree felony") with 33 L.P.R.A.

§ 4831 (entitled "Burglary" and reading "Any person who enters a

dwelling, building or other construction or structure . . . with

the purpose of committing any crime involving unlawful taking or

a felony shall incur a misdemeanor").             Thus, far from establishing

that Marte-de la Cruz was convicted of burglary, the record

actually contains multiple corroborating indications that his

conviction was for robbery, as the plea agreement and subsequent

court proceedings assumed.             It appears likely that there was no

error at all.       In any event, there was certainly no clear and grave

error sufficient to constitute a miscarriage of justice.

                                III.    Conclusion

             Marte-de la Cruz agreed to waive his right to appeal his

conviction and sentence in this case, assuming he received a

certain sentence.          He received that sentence, triggering the


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waiver.      The waiver was made knowingly and voluntarily, and thus

is valid.     And he has given us no reason to conclude that enforcing

the waiver would work a miscarriage of justice; indeed, the only

error   of    which    he   complains   was    likely   not   error    at   all.

Accordingly,     the   waiver   bars    this   appeal   and   the     appeal   is

dismissed.




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