          United States Court of Appeals
                     For the First Circuit


No. 14-1676

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    DAVID OPPENHEIMER-TORRES,

                      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, Kayatta, and Barron,
                         Circuit Judges.


     Lisa Aidlin, on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.


                        November 13, 2015
            KAYATTA,      Circuit     Judge.           Defendant-appellant         David

Oppenheimer-Torres        ("Oppenheimer")         appeals     his    sentence     after

pleading guilty of conspiring to possess and distribute illegal

drugs near a public housing facility, in violation of 21 U.S.C.

§§    841(a)(1),   846,    and   860,       and   of   possessing     a   firearm    in

furtherance of a drug trafficking crime in violation of 18 U.S.C.

§    924(c)(1)(A).     Because        the    sentence     was    within     the   range

specified in a plea agreement containing a waiver of appeal,

because we find that the prosecutor's false start in performing

the    prosecutor's    duties     under       that     plea     agreement    did    not

constitute a breach of the agreement, and because we find in

Oppenheimer's arguments no other request for setting aside the

agreement, we dismiss the appeal.

                                 I.    Background

            Because this appeal follows a guilty plea, we derive the

facts from the plea agreement, the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report

("PSR"), and the sentencing hearing transcript.                     United States v.

Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013). From 2004 to 2012,

Oppenheimer was the leader of a drug trafficking organization

operating in the public housing projects of Carolina, Puerto Rico.

Oppenheimer acted as an "enforcer" and oversaw the supply and

distribution of cocaine, heroin, and other drugs.                    In May 2012, a

grand jury indicted Oppenheimer, along with 73 other individuals,


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on six drug-trafficking-related charges.            He pleaded guilty to

conspiring to traffic drugs near public housing and to aiding and

abetting the use or carrying of a firearm in connection with drug

trafficking.      The district court dismissed the remaining counts.

A.           The Plea Agreement

             The written plea agreement (the "Agreement") executed in

accord     with   Federal   Rule    of   Criminal   Procedure    11(c)(1)(B)

stipulated that each party would recommend a sentence that fell

within the range of 135-168 months on the conspiracy charge.                The

parties selected this range under the United States Sentencing

Guidelines by, in relevant part, assuming a base level Criminal

History Category (in other words, no criminal history).                     The

Agreement further provided that the government would not recommend

a sentence in excess of 168 months on the conspiracy charge even

if   the   assumed   Criminal      History   Category   turned   out   to   be

understated. Finally, the Agreement called for a statutory minimum

sentence of 60 months for the firearm charge, to run consecutively.

All remaining counts were dismissed.

             The Agreement included a clause waiving Oppenheimer's

right to appeal "provided that the defendant is sentenced in

accordance with the terms and conditions set forth in the Sentence

Recommendation provision of this Plea Agreement."            At the change

of plea hearing, the court determined that Oppenheimer's guilty

plea was intelligent and voluntary.


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B.          The Sentencing Hearing

            After reading from the Agreement at sentencing, the

judge asked the prosecutor for the government's position, stating

"you have the right to request the maximum."         The prosecutor

answered:

            That is correct, Your Honor. And the United
            States will request that we stand by what we
            have recommended, and that the United States
            would be able to argue for a sentence within
            the applicable guideline range.

            In this case, I understand that the applicable
            guideline range is a level of 33.      And the
            defendant's criminal history category turns
            out to be criminal history II, based on the
            fact that the conviction in the year 2003 was
            and should be considered relevant conduct for
            purposes of making that determination.

            That being the case, the United States, based
            on what has been proffered to the Court, when
            the Court asked us in relation to the
            defendant's participation in the conspiracy,
            request [sic] that he be sentenced to the
            maximum of the applicable guideline range....

            [T]he United States requests that the Court
            will take all these factors into consideration
            in imposing the maximum sentence that could be
            imposed when taking into consideration the
            defendant's criminal history category and the
            total offense level that was stipulated by the
            parties in this case.

This was the first mention in the record of the fact that the PSR

calculated a Criminal History Category of II, rather than I as

assumed in the Agreement.       Slightly later in the proceeding,

immediately after an off-the-record discussion at sidebar between



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the   Court    and   the   Probation   Officer,   the   following   exchange

occurred:

              THE COURT: United States, your position is we
              ought to stay with 135 to 168?

              [THE PROSECUTOR]: That's the criminal history,
              I understand that's the agreement, and it was
              an agreement that was also made with Counsel
              Contreras, that the 2003 conduct could be
              considered relevant conduct for the purpose of
              determining the defendant's criminal history
              category.

              THE COURT: But we are not including that all.

              [THE PROSECUTOR]: So it is not to be included.
              And then it's total offense level 33, with a
              criminal history of II, and the guideline
              range will be 135, 168.

              THE PROBATION OFFICER: 151 to 181.

              [THE PROSECUTOR]: 151 to 188.

              THE COURT: 151 to 188, but your agreement is
              at 138 [sic], right?

              [DEFENSE COUNSEL]: But page 7 of the
              agreement, it says: "Notwithstanding, the
              parties specifically agree to the above-
              mentioned      sentence       recommendation
              irrespective   of    defendant's    criminal
              history..."

              THE COURT: Criminal history.

              [DEFENSE COUNSEL]: And resulting          guideline
              range, and it will be 135 to 168.

              THE COURT: So it was known then by the United
              States that he could have had a higher
              history?

              [DEFENSE COUNSEL]: Obviously, Your Honor.



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              THE COURT: All right. Okay.

              At that point, it was clear to the court that the

government's recommendation was as in the Agreement, and even the

belatedly-enlightened        prosecutor       thereafter    sought    a    high-end

sentence of only 168 months on the conspiracy charge.                 Eliminating

any doubt, the judge reiterated that under a Criminal History

Category of II, the guidelines sentencing range would have been

151    to    188   months,   "but    the    parties    stipulated    135    to   168,

irrespective if he was history I or II."                 The judge then imposed

a total prison sentence of 150 months for the conspiracy charge

and 60 months for the firearm charge for a total of 210 months--a

sentence in the middle of the range contemplated by the Agreement.

                                    II.    Analysis

              The government argues that this appeal must be dismissed

because Oppenheimer entered into a plea agreement under which he

waived any right to appeal if he was "sentenced in accordance with

the terms and conditions set forth in the Sentencing Recommendation

provision of [the plea agreement]."                 Oppenheimer replies that he

must    be    re-sentenced    because       the    government   broke      the   plea

agreement, or because there were alleged defects in the acceptance

of his plea in the first instance.                For the following reasons, we

agree with the government.




                                            - 5 -
                                       A.

             Oppenheimer first argues that his sentencing was not "in

accordance    with    the   terms    and    conditions     set    forth   in   the

Sentencing Recommendation provision" of the Agreement because the

prosecutor breached the Agreement by first recommending a sentence

not in accord with the agreed recommendation.              Therefore, reasons

Oppenheimer, the condition precedent to triggering the waiver

never occurred.

             The   government    replies    that    when   the    transcript   is

viewed as a whole, it reveals no breach of the plea agreement

because the prosecutor corrected the initial misstep. At one time,

such an argument by the government may not have reached first base,

as the law in this circuit was that an erroneous sentencing

recommendation in breach of a plea agreement was not cured by

withdrawal    in   favor    of   a   belatedly     compliant     recommendation.

United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990).

Subsequently, however, the United States Supreme Court expressly

stated   that      "some    breaches    [of   agreements         for   sentencing

recommendations] may be curable upon timely objection—for example,

where the prosecution simply forgot its commitment and is willing

to adhere to the agreement."           Puckett v. United States, 556 U.S.

129, 140 (2009).      So the question potentially posed in this case

is whether the prosecutor's misstep in this case was one that could

be satisfactorily cured by correction.


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            Of course, we only need answer this question directly if

the claim of error was preserved.          In fact, it was not.       Unlike

the defendant in Kurkculer, Oppenheimer never suggested to the

district court that the error was incurable, or that the particular

cure was ineffective.       Most notably, Oppenheimer did not ask for

the relief he now seeks (re-sentencing by a different judge who

would not have heard the erroneous recommendation).                 Instead,

having secured a corrected recommendation in accordance with the

plea agreement, he took his shot at seeing what sentence he

received.    To now argue for the first time on appeal that the

prosecutor's error was not cured, and that the district court judge

should have declined to issue a sentence, Oppenheimer need carry

the burden of plain error review by showing:           "(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."        United States v. Marchena-Silvestre,

No. 14-1404, 2015 WL 5813344, at *3 (1st Cir. Oct. 6, 2015)

(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

            We can find no obvious error in the district court's

decision    to    proceed   following    the    prosecution's     unambiguous

correction of its initial error. In context it is abundantly clear

that the insufficiently prepared prosecutor at the sentencing

hearing was simply confused about the nature of the Agreement that


                                        - 7 -
another lawyer in her office had drafted.              Once coached by the

sentencing judge and alerted by defense counsel to the actual

language of the Agreement that the prosecutor had apparently not

read, the prosecutor abandoned without protest or equivocation her

uninformed recommendation.

           It was apparent all along to the district court that the

false start by the prosecutor who covered the hearing was the

product of ignorance rather than a sign that the government had

second thoughts.      This is not a record in which the misstep

conveyed a message that the ultimate recommendation was insincere.

United States v. Alcalá-Sánchez, 666 F.3d 571, 576 (9th Cir. 2012)

(finding a breach where the prosecutor's "equivocations left room

for doubt about the government's position").             Rather, this is a

case in which the transcript as a whole makes clear that all

present   (except,   initially,      the   prosecutor)   knew    plainly   and

correctly that the government's considered recommendation was as

in the Agreement.     In short, it is not obvious that there was a

breach that was not adequately corrected as the Supreme Court

anticipated   in   Puckett.     On    plain    error   review,   Oppenheimer

therefore fails to convince us that he was not sentenced in accord

with his plea agreement.

                                      B.

           Oppenheimer next argues that his guilty plea itself was

invalid for two reasons.      First, he claims that the voluntariness


                                       - 8 -
of his guilty plea was vitiated by an alleged misstatement of the

law made by the district court during sentencing.       He further

alleges that the factual basis for his guilty plea was inadequate

under Rule 11 of the Federal Rules of Criminal Procedure.

          Oppenheimer never raised these arguments in the district

court, and thus would confront the burden, at least, of plain error

review should we consider them on appeal.      On this particular

appeal, though, we need not consider these arguments at all because

Oppenheimer quite carefully--and likely wisely--does not ask us to

free the parties from the terms of the Agreement.   Rather, he asks

only that we remand for resentencing under that very Agreement.

This argument is precisely the equivalent of asking us to affirm

the Agreement while simultaneously freeing him of one of its

central terms (the appeal waiver).   Such an attempt to retain the

benefit of the bargain struck with the government while revoking

part of the consideration for that bargain must fail.   See United

States v. Knox, 287 F.3d 667, 671-72 (7th Cir. 2002) (client's

desire not to withdraw guilty plea should preclude attacks on

voluntariness and adequacy of plea); United States v. Terwilinger,

69 F.3d 534 (4th Cir. 1995)(unpublished)(per curiam) ("Because

[defendant] does not wish to withdraw his plea, any omission in

questioning during the Rule 11 hearing by the district court did

not affect [the defendant]'s substantial rights."); Vega v. United

States, Nos. CR-F-05-389, CR-F-02-5408, 2008 WL 2915393, at *2


                                 - 9 -
(E.D. Cal. July 25, 2008) ("Petitioner's contention that he does

not seek . . . to set aside his guilty plea negates any validity

to his arguments that the plea was not intelligently entered.").

                            III.    Conclusion

          Because    we   find    that   Oppenheimer   was   sentenced     "in

accordance   with   the   terms    and   conditions    set   forth"   in   the

Agreement, and there being no cause to consider whether the

Agreement should be set aside, the waiver of appeal he signed is

enforceable and we lack jurisdiction to consider his appeal.                It

is therefore dismissed.




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