United States of America v. Josean Montalvo Gerena

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2059
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEAN MONTALVO GERENA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Julio César Alejandro Serrano on brief for appellant.
Thomas F. Klumper, 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.
November 8, 2017

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Per Curiam. Pursuant to a plea agreement, defendant
Josean Montalvo Gerena ("Montalvo") pled guilty to and was
sentenced for one count of conspiracy to possess a controlled
substance with intent to distribute. By the terms of the waiver
of appeal provision in the plea agreement, "[t]he defendant hereby
agrees that if this Honorable Court accepts this agreement and
sentences him according to its terms, conditions, and
recommendations, defendant waives and surrenders his right to
appeal the conviction and sentence in this case." The agreement
provided for a sentence of 87 to 125 months' imprisonment if
Montalvo was found to have a criminal history category ("CHC") of
IV or higher. The district court determined Montalvo's CHC to be
VI. After calculating the applicable guidelines range, the court
sentenced him to 125 months' imprisonment, a term consistent with
the plea agreement.
Although Montalvo perfunctorily asserts that the plea
agreement does not bar him from appealing on the ground that his
CHC should have been lower, and that he therefore should have
received a lower sentence, this bare assertion clearly contradicts
the plain language of the appeal waiver provision. Because
Montalvo has failed to contest the waiver of his appeal rights in
any developed manner, he has waived any argument that the appeal
waiver does not apply. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

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unaccompanied by some effort at developed argumentation, are
deemed waived.").
Moreover, there is no reason not to enforce the appeal
waiver. The scope of the waiver was clearly delineated, the
district court confirmed Montalvo's understanding of the appeal
waiver in a colloquy at the change of plea hearing, and there is
no miscarriage of justice in Montalvo's run-of-the-mill claims of
sentencing error. See United States v. Miliano, 480 F.3d 605, 608
(1st Cir. 2007).
Accordingly, we summarily dismiss Montalvo's appeal.
See 1st Cir. R. 27.0(c).

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