14-1515, 14-1516 United States of America v. Angel Abner Betancourt-Pérez

United States Court of Appeals
For the First Circuit
Nos. 14-1514, 14-1515, 14-1516
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL ABNER BETANCOURT-PÉREZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Selya, and Thompson,
Circuit Judges.
Joshua L. Gordon on brief for appellant.
Mainon A. Schwartz, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney,
on brief for appellee.
August 10, 2016

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THOMPSON, Circuit Judge. For his involvement in various
illegal drug-related activities, Defendant-Appellant Angel Abner
Betancourt-Pérez was indicted in three separate criminal cases,
which were resolved by a single plea agreement. Betancourt-Pérez
now appeals his sentence, arguing that the district court should
have accepted the plea agreement's guideline calculations. But
since Betancourt-Pérez waived his right to appeal, we dismiss.
BACKGROUND 1
A. Arrest and Indictments
On May 5, 2010, the government unsealed an indictment
charging 70 co-conspirators for their participation in a large
drug trafficking organization known as "El Castillo," which
operated out of a public housing project in Carolina, Puerto Rico,
and its surrounding areas. Betancourt-Pérez, one of El Castillo's
"runners," 2 was among those indicted on various drug and firearm
counts.
Although an arrest warrant was issued for Betancourt-
Pérez, he remained a fugitive for over a year. Finally, on May
1 Because Betancourt-Pérez's convictions resulted from a
guilty plea, we draw the facts from the plea agreement, the
Presentence Investigation ("PSI") report, and the transcript of
the sentencing hearing. See United States v. Ocasio-Cancel, 727
F.3d 85, 88 (1st Cir. 2013).
2 A "runner" is basically a go-between for the drug-ring
higher-ups. The runner supplies the street-level sellers with
drugs, collects the money from the sales, and pays the sellers
their share.

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10, 2011, after receiving a tip, law enforcement agents surveilled
Betancourt-Pérez's apartment and observed him loading boxes (in
which large quantities of marijuana were later found) into a
vehicle in the parking lot. They arrested Betancourt-Pérez that
day, and also executed a search warrant for his apartment where
they found and seized more drugs and a gun. 3 Based on what the
agents had observed and seized at the apartment, the government
filed a second indictment, charging Betancourt-Pérez with two drug
counts and a firearm count.
Now, as it turns out, Betancourt-Pérez was not only a
member of El Castillo's operations, but also a part of another
drug conspiracy -- this one engaged in sourcing marijuana from
Mexico, California, and Florida, and distributing it throughout
Puerto Rico. For these separate drug-related activities,
Betancourt-Pérez was indicted a third time.
B. Plea Deal and Sentencing
The parties eventually negotiated a plea deal that
resolved the charges in all three of Betancourt-Pérez's criminal
cases. As part of the deal, Betancourt-Pérez agreed to plead
guilty to one count of conspiracy to possess with intent to
distribute from each of the three indictments, involving between
3 The government also found a collection of jewelry, the topic
of a related civil forfeiture appeal, which we address in a
separate opinion issued herewith.

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3.5 and 5 kilograms of cocaine, between 2 and 3.5 kilograms of
cocaine, and between 100 and 400 kilograms of marijuana,
respectively, as well as one count from the second indictment for
possession of a firearm in furtherance of a drug trafficking crime.
Because of the relatedness of the drug crimes, the plea
deal grouped the three conspiracy counts together, and calculated
a guideline range of 51 to 63 months (an erroneous calculation,
the parties now agree). 4 As for the firearm charge, as provided
for by U.S.S.G. § 2K2.4(b), the plea agreement assigned a
consecutive guideline sentence equal to the statutory minimum, in
this case 60 months, 18 U.S.C. § 924(c)(1)(A)(i).
4 The plea agreement came to this guideline sentence based on
a total offense level of 24 and a criminal history category ("CHC")
of 1. The plea agreement determined the total offense level as
follows: it assigned a base offense level ("BOL") of 26 based on
the quantity of drugs involved, added 1 level for protected
location (the public housing project), and subtracted 3 levels for
acceptance of responsibility. But the BOL calculation was
incorrect.
Based on the drug quantities to which Betancourt-Pérez pled
guilty, the three conspiracy counts together involved the
"marihuana equivalent" of between 1,200 and 2,200 kilograms of a
controlled substance, for which the BOL (at the time of these
proceedings) was 32. See U.S. Sentencing Guidelines Manual
("U.S.S.G.") § 2D1.1 application note 8(B), (D) (U.S. Sentencing
Comm'n 2012) (instructing that 1 gram of cocaine is equal to 200
grams of marijuana); id. § 2D1.1(c)(5) (assigning a BOL of 30 for
offenses involving "at least 1,000 KG but less than 3,000 KG of
Marihuana"). Despite elsewhere stating clearly the cocaine and
marijuana quantities involved, the plea agreement inexplicably
assigned a BOL based on only 100 to 400 kilograms of marijuana.
It was also mistaken in adding only 1 level for the protected
location; it should have added 2. See id. § 2D1.2(a)(1).

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The plea agreement went on to memorialize a joint
sentencing recommendation: concurrent sentences of 60 to 120
months for the three conspiracy counts, and a consecutive 60-month
sentence for the firearm charge. The agreement also contained a
provision in which Betancourt-Pérez waived his right to appeal, so
long as he was sentenced in accordance with this sentencing
recommendation.
Betancourt-Pérez pled guilty to the four counts on
October 18, 2013. A PSI report was completed in April 2014. Like
the parties' plea agreement, the PSI report grouped the three
conspiracy counts together. Unlike the plea agreement, the PSI
report assigned (correctly) a total offense level of 31. 5 Based
on the total offense level and Betancourt-Pérez's CHC of 1, the
PSI report put the guideline range for the three conspiracy counts
at 108 to 135 months. For the firearm charge, the guideline
sentence remained the 60-month statutory minimum under
§ 924(c)(1)(A)(i).
Betancourt-Pérez objected to the PSI report's guideline
calculations and argued the court should instead use the
calculations in the plea agreement because the parties had agreed
5 The PSI report came to a total offense level of 31 by
calculating (properly, as we explain in our previous footnote) a
BOL of 32 based on the quantity of drugs involved. It then added
2 levels for the involvement of a protected location, and
subtracted 3 for acceptance of responsibility.

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to those calculations in coming to their deal. 6 But in the end,
the district judge applied the correctly calculated guideline
range, and sentenced Betancourt-Pérez to concurrent 108-month (9-
year) sentences for the three conspiracy counts, which the judge
reasoned was still within the bargained-for 60-to-120-month range
to which the parties had agreed. For the firearm count, the judge
imposed the agreed-upon 60-month (5-year) sentence, to be served
consecutively, thus sentencing Betancourt-Pérez to a total of 168
months (14 years) of imprisonment. Betancourt-Pérez timely
appealed.
DISCUSSION
On appeal, Betancourt-Pérez attempts to challenge the
district judge's refusal to adopt the plea agreement's guideline
calculations at sentencing. But we can go no further until we
first address the threshold inquiry of whether Betancourt-Pérez's
appeal is waived. See United States v. Miliano, 480 F.3d 605, 608
(1st Cir. 2007).
6 We take a moment to square away a bit of housekeeping. The
merits of Betancourt-Pérez's appeal (which, for reasons we discuss
below, we do not reach) again raise this argument before us. In
support of the argument, Betancourt-Pérez moved during briefing to
supplement the appellate record with an unsigned draft of a
previous, failed plea agreement in which the guideline range was
correctly calculated. Betancourt-Pérez argued that the fact that
this prior deal failed shows he would not have agreed to the
current plea deal but for its (erroneous) lower guideline
calculations. Because we do not reach the case's merits, it makes
no difference, and so we assume, favorably to Betancourt-Pérez,
that we may admit the draft agreement into the record.

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As best we can tell, Betancourt-Pérez attempts to get
around the waiver by arguing (1) that he may not have been
sentenced in accord with the plea agreement because the agreement's
sentence recommendation provision is ambiguous, and (2) that the
probation office's filing of a PSI report that contained
contradictory guideline calculations constituted a breach of the
plea agreement. Unfortunately for Betancourt-Pérez, we are
convinced by neither argument.
A. Waiver
Appeal waivers in plea agreements are "presumptively
valid," so long as: (1) the agreement clearly delineates the
waiver's scope; (2) the district court specifically inquired about
the waiver at the plea hearing; and (3) denial of the right to
appeal would not constitute a miscarriage of justice. United
States v. Teeter, 257 F.3d 14, 23-25 (1st Cir. 2001).
In considering the scope of an appeal waiver, we apply
basic contract principles. United States v. Arroyo-Blas, 783 F.3d
361, 365 (1st Cir. 2015). Ambiguities are construed in favor of
allowing the appeal to proceed, "[b]ut, '[i]f a plea agreement
unambiguously resolves an issue, that usually ends the judicial
inquiry.'" Id. at 365 (second alteration in original) (quoting
United States v. Alegria, 192 F.3d 179, 183 (1st Cir. 1999)).
Here, the waiver of appeal in the parties' plea agreement
states: "The defendant knowingly and voluntarily waives the right

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to appeal the judgment and sentence in this case, provided that
the defendant is sentenced in accordance with the terms and
conditions set forth in the Sentence Recommendation provisions of
this Plea Agreement."
Betancourt-Pérez argues that the sentence recommendation
provision is ambiguous, and that it is therefore uncertain whether
his sentence was, in fact, in accord with the provision. The
sentence recommendation provision reads, in full:
As to COUNT ONE[, the conspiracy count in each of the
three criminal cases,] [t]he defendant may request a
sentence of sixty (60) months of imprisonment and the
United States reserve[s] the right to request a sentence
of up to one hundred and twenty (120) months of
imprisonment to be served concurrently with each other,
based on the factors in [18 U.S.C. § 3553(a)].
Additionally, as to [the firearm count,] the parties
agree to recommend that defendant be sentenced to sixty
(60) months of imprisonment, consecutive to any term of
imprisonment imposed for COUNT ONE in [the three]
criminal cases. The parties agree that any
recommendation for a term of imprisonment of less than
one hundred and twenty (120) months, will constitute a
breach of the plea agreement.
As to the provision's first sentence, Betancourt-Pérez
attempts to argue that, despite its plain words to the contrary,
it must be interpreted as permitting a maximum recommendation of
not 120 months, but only 63 months, because this reading
"harmonize[s]" the plea agreement's sentence recommendation with
its guideline calculation, erroneous though it may be, of 51 to 63

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months for the conspiracy counts. We disagree. 7 The text of the
provision's first two sentences is unambiguous: the sentences
state that the parties will recommend the judge impose concurrent
sentences in the 60-to-120-month range for the three conspiracy
counts and a consecutive 60-month sentence for the firearm count.
We think it equally clear that the third sentence then
goes on to recap that the lowest overall sentence that could
accordingly be recommended is 120 months (i.e., a minimum 60 months
for the conspiracy counts, plus 60 months for the firearm count).
But Betancourt-Pérez quibbles with this third sentence as well: he
argues that it is ambiguous because it can be interpreted as
prohibiting a recommendation of less than 120 months either for
the whole sentence, or just for the firearm count. Specifically,
Betancourt-Pérez reasons that the first two sentences begin with
"As to COUNT ONE" and "Additionally, as to [the firearm count],"
and therefore make clear to which counts they refer. The third
sentence, he argues, contains no such clause and thus, by contrast,
7 It appears Betancourt-Pérez himself disagreed as well.
During the change of plea hearing, Betancourt-Pérez stated he
"underst[oo]d clearly" that the plea agreement provided that, "for
purposes of sentencing recommendations" for the three conspiracy
charges, he could "request a sentence of 60 months of imprisonment"
and the government could "request a sentence up to 120 months."
Indeed, a 60-to-120-month sentence recommendation for the
conspiracy counts aligns with the guideline range for the drug
quantities to which Betancourt-Pérez pled guilty.

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is imprecise as to whether it refers to all the counts or the
firearm count only.
But we see no such ambiguity. To the contrary, we think
the fact that the third sentence is the only one in the trio
without a qualifier clarifies that the third sentence is not
restricted to the firearm count, and applies instead to the overall
sentence. Furthermore, applying basic contract principles, we
consider the agreement as a whole. United States v. Okoye, 731
F.3d 46, 49 (1st Cir. 2013). Preceding sections of the plea
agreement make it clear that the parties agreed to a guideline
sentence of 60 months for the firearm count to be served
consecutively to any sentence for the conspiracy counts. 8
There is thus no basis for us to read into the provision
the ambiguity that Betancourt-Pérez suggests. The sentence
recommendation provision makes plain that the parties contemplated
a total term of imprisonment for all the charges of no less than
120 months and no more than 180 months. When the district court
imposed the ultimate sentence of 168 months of imprisonment, it
imposed a sentence that fell squarely within the parameters of the
parties' recommendation.
8 Betancourt-Pérez also stated during the change of plea
hearing that he "underst[oo]d clearly" that both parties agreed he
would "be sentenced to 60 months of imprisonment[ for the firearm
offense], which has to be consecutive to any sentence imposed [for
the conspiracy counts]."

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Betancourt-Pérez has not met his burden of showing that
he meets Teeter's second and third requirements, either. The judge
dutifully inquired about the waiver during the change-of-plea
colloquy, and Betancourt-Pérez does not argue otherwise. Nor does
he point us to any error sufficiently "glaring" that it requires
reversal under Teeter's sparingly applied "miscarriage of justice"
exception. Miliano, 480 F.3d at 608. In fact, his argument that
the judge erred in rejecting the plea agreement's guideline
calculation is altogether unavailing. The parties' guideline
calculations were not binding on the judge, see Fed. R. Crim.
P. 11(c)(3)(B), as Betancourt-Pérez expressly acknowledged in the
plea agreement and during his change-of-plea hearing. And the
text of the plea agreement, as well as the transcripts from the
change-of-plea and sentencing hearings, all make plain that
Betancourt-Pérez fully understood he had bargained for a total
sentence between 120 and 180 months (or 10 to 15 years). This is
indeed what the government recommended, and it is what he got.
That the district judge arrived at the ultimate 168-month (14-
year) sentence by way of different (more correct) arithmetic than
Betancourt-Pérez would have preferred does not invalidate the
appeal waiver.
B. Breach
As for the claim that the government breached the plea
agreement -- an argument subject to plain error review because

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Betancourt-Pérez never raised it below, see United States v.
Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014) -- it is utterly
without merit. Betancourt-Pérez points to no statement or direct
conduct on the part of the prosecution that can be seen as a
violation of the agreement. Instead, he claims that merely
"allowing submission of the PSI [report], in which the grouping
calculation contravenes the plea agreement, [was] itself a breach
of the plea agreement." We disagree.
Neither the probation officer who prepared the PSI
report nor the district court, which accepted its filing, were
parties to the plea agreement. The agreement was between
Betancourt-Pérez and the United States Attorney's Office for the
District of Puerto Rico, which has no control over the preparation
or submission of the PSI report. In fact, in preparing a PSI
report, the probation officer is expected "to exercise his
independent judgment as to the application of the guidelines."
United States v. Fraza, 106 F.3d 1050, 1056 (1st Cir. 1997). The
PSI report therefore cannot be attributed to the prosecution, nor
can the district court's consideration and acceptance of the
report's independent recommendations be considered a breach of the
parties' agreement.
Betancourt-Pérez was thus sentenced within the
parameters of the plea agreement's appeal waiver, and the plea

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agreement was not breached. Accordingly, we dismiss Betancourt-
Pérez's appeal.

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