          United States Court of Appeals
                     For the First Circuit


No. 14-1793

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                          LUIS CIRILO,

                      Defendant, Appellant.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                 Torruella, Kayatta, and Barron,
                         Circuit Judges.


     Robert Herrick on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, with
whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Susan Jorgensen, Assistant United States
Attorney, were on brief for appellee.


                       September 24, 2015
            BARRON, Circuit Judge.             In this appeal, defendant Luis

Cirilo challenges the sentence he received for one count of

unlawful   possession      of    a    firearm    in    violation    of    18    U.S.C.

§ 922(g)(8).     Cirilo contends that the District Court erred by

imposing a sentence based on disputed facts in the presentence

report.     He   also     argues      that     the    District   Court's       factual

determinations were clearly erroneous.                Because we find no error,

we affirm the judgment of the District Court.

                                         I.

            Cirilo entered into a plea agreement with the government

on one count of unlawful firearm possession.                  The plea agreement

set forth sentencing recommendations but stipulated that the judge

was not bound by them.          The agreement stipulated that the firearm

offense    carried   a    base       offense    level    of   20,   see    U.S.S.G.

§ 2K2.1(a)(4), and that the defendant was eligible for a three-

level deduction based upon his acceptance of responsibility, see

U.S.S.G. § 3E1.1.        The government agreed to recommend a sentence

at the lower end of the "applicable guidelines range."                    A section

of the plea agreement titled "Applicability of United States

Sentencing Guidelines" included a table of potential sentencing

ranges based on various criminal history categories and a total

offense level of 17.        With a criminal history category of I, as

Cirilo ultimately had, and a total offense level of 17, the




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applicable sentencing range specified in the plea agreement was 24

to 30 months.

           At the sentencing hearing, the District Court adopted

the presentence report's recommendation, which was based on a

different guidelines calculation than that in the plea agreement.

The presentence report recounted, as part of the description of

the   offense    conduct,      that   Cirilo    was   arrested     after   police

witnessed him fleeing the scene of an attempted burglary with four

other individuals, all of whom were dressed in bullet proof jackets

with "POLICE" patches.          Based on that conduct, the presentence

report stated that Cirilo qualified for a four-level enhancement,

pursuant to U.S.S.G. § 2K2.1(b)(6)(B), for possessing the firearm

during the commission of an attempted burglary.                  The presentence

report also stated that Cirilo qualified for an upward departure

under U.S.S.G. § 5K2.24 because the defendant wore or displayed an

official insignia or uniform during the commission of the offense.

The   presentence      report    ultimately      recommended      a    guidelines

sentencing range of 37 to 46 months.             The government nonetheless

recommended     a   sentence     at   the    lower    end   of   the   applicable

guidelines range set out in the plea agreement (i.e., 24 months).

           The      District     Court      imposed    a    60-month    term   of

imprisonment.       Cirilo now appeals.




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                                       II.

             Cirilo first argues that the District Court erred by

relying on disputed facts in the presentence report to calculate

the advisory sentencing range under the Sentencing Guidelines.

Cirilo's claim rests on Federal Rule of Criminal Procedure 32,

which provides that a court, at sentencing, "must -- for any

disputed portion of the presentence report or other controverted

matter -- rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing,

or because the court will not consider the matter in sentencing."

Fed. R. Crim. P. 32(i)(3)(B).

             But,   under    Rule     32,    facts   must   be   "sufficiently

'controverted' to trigger the sentencing court's fact-finding

duty."     United States v. McGee, 529 F.3d 691, 700 (6th Cir. 2008)

(quoting United States v. Hurst, 228 F.3d 751, 760 (6th Cir.

2000)); see also United States v. González, 736 F.3d 40, 42-43

(1st Cir. 2013).     Where "a defendant's objections to a presentence

investigation report are wholly conclusory and unsupported by

countervailing evidence, the sentencing court is entitled to rely

on the facts set forth in the presentence investigation report."

United States v. Jones, 778 F.3d 375, 386 n.4 (1st Cir. 2015)

(citing United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003)).

             Here, Cirilo's objections did not controvert the facts

in   the   presentence      report.     In    a   written   objection   to   the


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presentence report, defense counsel did object to the inclusion of

particular paragraphs recounting the attempted burglary on the

ground that "this is not what Mr. Cirilo pled guilty to."                    The

defense counsel's written objection to the report also challenged

the corresponding guideline calculations on the ground that they

"do not reflect the conduct Mr. Cirilo accepted responsibility

for."     Those paragraphs provided the factual basis for the four-

level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) and the grounds

for   a   departure   under   U.S.S.G.   §   5K2.24.         In   pressing   that

objection, however, defense counsel seemed to object to the use of

facts outside of the plea agreement for sentencing purposes, and

the probation office responded to this objection by clarifying

that "the [o]ffense [c]onduct in the presentence investigation

report is not necessarily limited to the facts agreed to by the

parties in a plea agreement or stipulation."                  At no point did

defense counsel directly or specifically challenge any of the facts

about the burglary that the report recounted.

            The limited nature of Cirilo's objections to the report

became even more apparent at the sentencing hearing.                     There,

defense    counsel    again   objected   that   "in    the    plea   agreement,

[Cirilo] signed a stipulation of fact that does not include any

relationship to any other commission of any other crime."                    And

when the court started to respond to the objection, the defense

counsel conceded that the probation officer could gather other


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information from beyond the plea agreement.    At no point in this

exchange did the defense counsel say anything to challenge the

substance of the factual allegations contained in the report.

          Soon thereafter, moreover, the probation officer offered

an account of the burglary.     But in response, defense counsel

stated only -- in an implicit admission -- that "[w]e just want to

clarify for the record that he was not found wearing a police vest.

He was in a car that had a police vest inside the car.   He was not

found wearing it."     In other words, the one comment on the

substance of the allegations in the report that the defense counsel

did make did not contradict the facts in the report on which the

District Court based the sentence.1

          Thus, although Cirilo contends that he raised a factual

dispute about the presentence report's account of the attempted



     1  Cirilo's reply brief suggests that the government
understated his sentencing exposure in negotiating the plea
agreement. But at his change-of-plea hearing, Cirilo was asked,
and indicated he understood, that the plea agreement's sentencing
recommendation was not binding on the District Court. A district
court is not required to follow the United States Attorney's
sentencing recommendation in a non-binding plea agreement. See
United States v. Jiménez-Otero, 898 F.2d 813, 815 (1st Cir. 1990)
("[T]he law is clear that, where a non-binding plea agreement is
struck, the district court is constrained neither by the United
States Attorney's sentencing recommendation nor by stipulations of
fact accompanying the plea contract." (citations omitted)). To
the extent that Cirilo suggests that the government was employing
a "negotiating tactic" that so impaired the fairness of the plea
process as to warrant re-sentencing, we deem the argument waived
for lack of development. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990).


                              - 6 -
burglary, the record shows that he did not.                The District Court

therefore committed no error in relying on the presentence report's

facts   about   the    attempted    burglary.       See    Fed.   R.   Crim.    P.

32(i)(3)(A) ("At sentencing, the court . . . may accept any

undisputed portion of the presentence report as a finding of

fact."); see also, e.g., United States v. Meléndez, 279 F.3d 16,

18 (1st Cir. 2002) ("[Defendant's] objection . . . was not an

objection to the factual accuracy of the information contained

therein but to its inclusion in the report."); United States v.

García,   954   F.2d    12,   19   (1st   Cir.   1992)     ("By   couching     his

objections      to     the    [presentence       report]     exclusively        as

interpretations of the facts, not as challenges to the underlying

facts themselves, the [defendant] effectively obviated any need

for an evidentiary hearing.").

             In a related challenge, Cirilo also argues that the

District Court clearly erred in finding that he had committed the

possession offense during the commission of another felony, see

U.S.S.G. § 2K2.1(b)(6)(B), and that he had committed those offenses

while wearing an official uniform, see U.S.S.G. § 5K2.24.                      But

Cirilo's argument is in fact just a reprise of the Rule 32 argument

we have just rejected.

             Cirilo's sole ground for asserting that the District

Court's   factual     findings     were   clearly   erroneous     is   that    the

presentence report's allegations could not supply the factual


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basis for the findings.     But, as we have just explained, Cirilo

did not actually contest the substance of the factual allegations.

And because in such circumstance, "a sentencing court may consider

facts contained in the [presentence report] as reliable evidence,"

the District Court was entitled to rely on the report's account.

United States v. López, 299 F.3d 84, 88 (1st Cir. 2002) (quoting

United States v. Cruz, 120 F.3d 1, 2 (1st Cir. 1997)).   Thus, the

record supports these findings, as Cirilo provides no reason for

us to conclude otherwise.

                                III.

          The judgment of the District Court is thus affirmed.




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