          United States Court of Appeals
                     For the First Circuit
No. 17-2122

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                       ALEX COLÓN-ROSARIO,

                      Defendant, Appellant.


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

         [Hon. Louis Guirola, Jr., U.S. District Judge]


                             Before

                    Kayatta, Circuit Judge,
                  Souter,** Associate Justice,
                   and Selya, Circuit Judge.


     Irma R. Valldejuli on brief for appellant.
     Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.


                         April 19, 2019




     
        Of the Southern District of Mississippi, sitting by
designation.
     ** Hon. David H. Souter, Associate Justice (Ret.) of the

Supreme Court of the United States, sitting by designation.
             SELYA, Circuit Judge.    Dismayed by his 240-month prison

sentence, defendant-appellant Alex Colón-Rosario claims that the

prosecutor committed various breaches of his plea agreement (the

Agreement) during the disposition hearing.              Since the appellant

raises these claims for the first time on appeal, our review is

solely for plain error.        Discerning none, we affirm the judgment

below.

I. BACKGROUND

             We briefly rehearse the relevant facts and travel of the

case.    Because this appeal trails in the wake of a guilty plea, we

draw our account from the Agreement, the change-of-plea colloquy,

the     presentence   investigation   report    (PSI      Report),   and    the

transcript of the disposition hearing.              See United States v.

Coleman, 884 F.3d 67, 69 (1st Cir. 2018).

             Following   the    expiration     of   a     restraining      order

previously obtained by the mother of his seven-year-old son, the

appellant began taking the boy to his house for weekend visits.

During these interludes, the appellant voiced threats of violence,

abused his son physically and sexually, and took pornographic

pictures. The boy's mother eventually noticed a significant change

in his behavior and learned of the abuse.               On February 7, 2014,

she notified the sex-crimes division of the Puerto Rico Police

Department.




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                 Matters deteriorated even further when, on March 28,

2014, the son either threatened or attempted to commit suicide

three times during the course of the day.                            After the third

incident, the boy was hospitalized in a mental institution.                         He

was discharged after eight days of inpatient care.

                 We fast-forward to June 3, 2015, when a federal grand

jury sitting in the District of Puerto Rico charged the appellant

with three counts of transporting a minor (his son) with the intent

to engage in criminal sexual activity.                     See 18 U.S.C. § 2423(a).

The appellant initially maintained his innocence but, in due

course, he entered into the Agreement and pleaded guilty to one

count of the indictment.1              The Agreement embodied the parties'

stipulation to a total offense level (TOL) of 35.                         This figure

included a two-level enhancement for the parental relationship,

see USSG §2G1.3(b)(1); an eight-level enhancement for the victim's

age,       see   id.    §2G1.3(b)(5);     and     a   three-level       reduction   for

acceptance of responsibility, see id. §3E1.1(b).                         Although the

Agreement indicated that other enhancements could be applied, they

were       omitted     (apparently   on   purpose)         from   the   offense   level

calculation.           The Agreement left open the applicable criminal

history category (CHC) but noted that a CHC of I would yield a

guideline         sentencing   range      (GSR)       of   168-210      months.     Not


       1
       Pursuant to the Agreement, the other two counts of the
indictment were dismissed at the time of sentencing.


                                          - 3 -
coincidentally, the Agreement constrained the government to argue

for a sentence of 168 months (the bottom of the putative GSR).

Finally, the Agreement contained a waiver-of-appeal provision,

which would take effect only if the district court sentenced the

appellant "according to [the Agreement's] terms, conditions and

recommendations, or sentence[d] him to any term of incarceration

within the applicable guideline range based on a [TOL] of 35."

             The tectonic plates shifted, though, when the probation

department     compiled   the   PSI    Report.   There,   the    probation

department recommended a TOL of 43 — a figure reached by beginning

with a higher base offense level and including enhancements that

had not been factored into the guideline calculations used in the

Agreement, such as enhancements for threats or force, the victim's

vulnerability, serious bodily injury, and a pattern of criminal

activity.      See id. §§2A3.1(b)(1), 2A3.1(b)(4)(B), 3A1.1(b)(1),

4B1.5(b)(1).     In combination with a CHC of I, this increased TOL

boosted the appellant's GSR to life imprisonment.         Neither party

objected to the guideline calculations adumbrated in the PSI

Report.

             The appellant proceeded to file a sentencing memorandum

seeking a 120-month sentence (the mandatory minimum for the offense

of conviction).     The memorandum outlined what he believed were

mitigating factors, such as his impoverished childhood and his

lack   of    education.     The   government's   sentencing     memorandum


                                      - 4 -
defended the GSR calculated in the Agreement and explained that

this calculation was "result-oriented" in that the government had

tendered the plea offer to protect the victim from the trauma of

a trial.    Accordingly, the government asked the court to impose a

168-month sentence.

            The disposition hearing was held on October 25, 2017.2

At   the   hearing,   the   sentencing    court   adopted   the   guideline

calculations set out in the PSI Report (not those limned in the

Agreement).     Defense counsel argued for the mandatory minimum

sentence — a 120-month term of immurement.            For his part, the

prosecutor argued in support of an incarcerative sentence of 168

months.    After considering the contentions of counsel, the PSI

Report, and the factors enumerated in 18 U.S.C. § 3553(a), the

court sentenced the appellant to a prison term of 240 months. This

timely appeal followed.

II. ANALYSIS

            The appellant argues that the government failed to honor

the commitments that it undertook in the Agreement.           The various

incidents of alleged breach relate to the government's supposed

failure to advocate straightforwardly for the sentence that it had




      2Hurricane Maria struck Puerto Rico prior to sentencing. The
United States District Court for the District of Puerto Rico was
forced to close temporarily and the sentencing phase of this case
was conducted in a courtroom located in the Southern District of
Mississippi.


                                  - 5 -
agreed   to    recommend.        There   is,    however,      a   threshold    issue

regarding the Agreement's waiver-of-appeal provision.                    We start

there.

                    A. The Waiver-of-Appeal Provision.

              The   government    posits       that    this   appeal    should       be

dismissed because the appellant's opening brief failed to address

the waiver-of-appeal provision at all.                In the government's view,

a defendant who signs a plea agreement containing an appeal waiver

and then attempts to appeal must perforce explain, in his opening

brief, why the waiver does not pretermit the appeal.                     For this

proposition, the government relies on our decision in United States

v. Miliano, in which we held that the defendant had an affirmative

obligation to explain up-front why the waiver-of-appeal provision

in his plea agreement was inapplicable.                 See 480 F.3d 605, 608

(1st Cir. 2007). We further held that, absent such an explanation,

the defendant "forfeit[ed] any right to contend either that the

waiver should not be enforced or that it d[id] not apply."                     Id.

              Everything    depends      on     context,      though,    and     the

government wrests Miliano from it contextual moorings.                    The rule

established there pertains only when a colorable question exists

as to whether a waiver-of-appeal provision applies.                    There is no

such question here.

              It is black-letter law that a waiver-of-appeal provision

precludes only those appeals that fall within its scope.                         See


                                      - 6 -
United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.

2010).     In     this    instance,    the    waiver-of-appeal       provision

obliterated     the   right   to   appeal    only   if    the   district   court

sentenced the appellant "according to [the Agreement's] terms,

conditions and recommendations, or sentence[d] him to any term of

incarceration within the applicable guideline range based on a

[TOL] of 35."     It is luminously clear that the sentence imposed

did not fall within those parameters:                    the sentencing court

eschewed the guideline calculations specified in the Agreement,

adopted a more onerous set of calculations, and imposed a sentence

substantially above the sentencing recommendations described in

the Agreement.        Given that the plain language of the waiver-of-

appeal provision makes manifest that it does not apply to the

sentence actually imposed by the district court,3 it would have

served no useful purpose for the appellant to address the appeal

waiver in his opening brief — and he was under no obligation to do

so.   See United States v. Ocasio-Cancel, 727 F.3d 85, 89 (1st Cir.

2013) (holding appeal waiver inapplicable when plain meaning of

plea agreement "vitiated the waiver-of-appeal provision in its




      3The proof of the pudding is that the government, in its
brief on appeal, argues only that the appellant has defaulted by
failing to address the waiver-of-appeal provision. It does not
argue that the waiver-of-appeal provision can plausibly be read to
bar this appeal. Indeed, the government concedes that "the waiver
of appeal was not triggered because the district court did not
sentence [the appellant] within the total offense level of 35."


                                    - 7 -
entirety"); cf. Allen v. Att'y Gen. of Me., 80 F.3d 569, 573 (1st

Cir. 1996) (explaining that "[t]he law . . . should not require

litigants to engage in empty gestures").

                     B. The Appellant's Claims.

            This brings us to the appellant's claims of error.            Our

starting point is his claim that the prosecutor violated the

Agreement   by   telling   the   district   court   that   there   were    no

mitigating factors in the appellant's case and that the only reason

the government made such a "sweetheart deal" was to avoid exposing

the victim (a young boy) to the rigors of trial.              Because the

appellant failed to preserve this claim below, our review is solely

for plain error.     See United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001).

            As we have said, plain error is "a formidable standard

of appellate review."      United States v. Saxena, 229 F.3d 1, 5 (1st

Cir. 2000); see Fed. R. Crim. P. 52(b).        It requires an appellant

to show "(1) that an error occurred (2) which was clear or obvious

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

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings."          Duarte, 246 F.3d at 60

(citing Johnson v. United States 520 U.S. 461, 466-67 (1997)).

Within this rubric, an error is deemed to affect an appellant's

substantial rights only when the error "likely affected the outcome




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of the proceedings."     United States v. Almonte-Nuñez, 771 F.3d 84,

89 (1st Cir. 2014).

           We detect nothing resembling plain error here.           The

Agreement committed the government to recommend a sentence of 168

months.    Because the appellant's plea rested, in part, on this

promise, the promise had to be fulfilled.        See Santobello v. New

York, 404 U.S. 257, 262 (1971).        We add, moreover, that in the

plea-agreement context, "we hold the government to 'the most

meticulous standards of both promise and performance.'"          United

States v. Montañez-Quiñones, 911 F.3d 59, 64 (1st Cir. 2018)

(quoting Correale v. United States, 479 F.2d 944, 947 (1st Cir.

1973)), cert. denied, ____ S. Ct. _____ (2019) [2019 WL 635196].

Satisfying these standards demands more than mere "lip service."

Saxena, 229 F.3d at 6.      Here, however, the government fulfilled

the commitment that it had made.      We explain briefly.

           To begin, the government's obligation to honor its plea-

agreement commitments does not exist in a vacuum.        The government

has a corollary obligation to furnish the sentencing court with

accurate   information     and   to   answer   the   court's   questions

forthrightly.     See Almonte-Nuñez, 771 F.3d at 90.      When carrying

out these duties, the government is under no compulsion to sugar-

coat the facts.    See id. at 91.

           In the case at hand, the "sweetheart deal" statement to

which the appellant refers was not a spontaneous utterance.          To


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the    contrary,   it   was   made   in   response     to   defense   counsel's

assertion that the government had agreed to recommend a bottom-

of-the-range sentence and to allow the appellant to argue for a

downward variance because of mitigating factors in the appellant's

life.    This assertion misrepresented the government's rationale,

and the prosecutor had a right — indeed, a duty — to correct the

misrepresentation and inform the sentencing court of the actual

rationale.    See id. at 89-90.      That is exactly what the prosecutor

did:    he explained that "[t]he only reason [the appellant] got

this sweetheart deal [wa]s because of the damage to the victim

that would occur at trial."          Since the challenged statement was

made "to correct what the [prosecutor] reasonably viewed as a

misstatement of fact by defense counsel," the statement did not

work a breach of the Agreement.           Id. at 90.

             In a variation on this theme, the appellant attacks the

"sweetheart deal" comment from a different angle.                 He suggests

that the comment shows that the government acted in bad faith and

"induce[d] him to plea."         But this suggestion is pulled out of

thin air:     protecting a minor victim from exposure to trial may

constitute a legitimate reason for offering a defendant a reduced

sentence.    Cf. Globe Newspaper Co. v. Super. Ct. for Norfolk Cty.,

457 U.S. 596, 607 (1982) (concluding that state's interest in

"safeguarding the physical and psychological well-being of a minor

[victim] is a compelling one").


                                     - 10 -
          The appellant next asserts that the prosecutor breached

the Agreement by "vigorously" delineating certain aggravating

factors pertaining to his case.     He notes that, at the disposition

hearing, the prosecutor made much of the fact that the victim was

the appellant's minor son and recounted that the abuse consisted

of oral sex, sodomy, physical harm, threats of violence, and rape.

This assertion, too, is subject only to plain error review — and

at any rate, it is unavailing.

          As we already have indicated, the government has an

affirmative    obligation   to   supply    the    sentencing    court   with

accurate facts, including relevant offense characteristics.              See

Almonte-Nuñez, 771 F.3d at 90.     The appellant was not entitled to

have the government soft-pedal those facts.         See id. at 91.

          In all events, "[w]hen the parties agree that a defendant

may argue for a particular sentence while the government may argue

for a somewhat stiffer sentence, the government is not constrained

to pull its punches when arguing for the stiffer sentence."

Montañez-Quiñones, 911 F.3d at 65.        So it is here.      The Agreement

contemplated   that   the   government    would   recommend    a   168-month

sentence and that the appellant would ask for a 120-month sentence.

Consistent with that framework, it was well within bounds for the

prosecutor to recount the offense characteristics and to explain

why those characteristics justified a 168-month sentence rather

than the more lenient sentence that the appellant was seeking.


                                 - 11 -
That the details of the offense of conviction were repulsive does

not   in   any   way   circumscribe      the    scope   of     the       prosecutor's

permissible advocacy.        See id.

            In a last ditch effort to snatch victory from the jaws

of    defeat,    the   appellant       asseverates      that       the     prosecutor

transgressed the Agreement by telling the sentencing court that

"[t]he nature and circumstances of the offense, the seriousness of

the offense, [and] the requirements for just punishment do not

scream for a [downward] variance or a departure" from the GSR.

Because a 168-month sentence necessitated a downward variance from

the GSR adopted by the sentencing court, the quoted statement — in

the appellant's view — undermined the foundation on which the

proposed 168-month sentence rested.            Thus, the appellant says the

prosecutor took with the left hand what he was committed to give

with the right hand.

            This asseveration need not detain us.                  While the quoted

statement is admittedly unclear as to which GSR calculation the

prosecutor had in mind when speaking of the lack of any predicate

for "a variance or a departure" — the GSR mentioned in the

Agreement   or   the   GSR   adopted     by    the   court     —    the    prosecutor

clarified any ambiguity within a matter of moments.                       He told the

court that when he stated that "nothing the defense has said would

imply that [the appellant] deserved a variance," he was referring

to a "variance [from] our calculation [in] the plea agreement."


                                   - 12 -
When assessing a claim that a prosecutor has breached a plea

agreement, we must consider the sentencing record as a whole.   See

Almonte-Nuñez, 771 F.3d at 91.    Seen in this light, we discern no

hint of plain error in the challenged statement.

III. CONCLUSION

            We need go no further. For the reasons elucidated above,

the judgment of the district court is



Affirmed.




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