Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit No. 06-2432

UNITED STATES OF AMERICA,

Appellee,

v.

RAMÓN PÉREZ-MEJÍAS,

Defendant, Appellant.

No. 06-2616

UNITED STATES OF AMERICA,

Appellee,

v.

TÓMAS ROSARIO-PACHÉ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Lipez, Selya and Howard, Circuit Judges.

Edwin E. León León on brief for appellant Ramón Pérez-Mejías.

Rafael Anglada-Lopez on brief for appellant Tomás Rosario- Paché. Nelson Pérez-Sosa, Assistant U.S. Attorney, Thomas E. Klumper, Assistant U.S. Attorney, and Rosa Emilia Rodriguez-Vélez, United States Attorney, on brief for appellee.

September 17, 2008 Per Curiam. These two consolidated appeals arise from a

multi-defendant prosecution for conspiracy to smuggle cocaine into

the United States from the Dominican Republic and to possess the

cocaine with intent to distribute it. On appeal, one defendant,

Tomás Rosario-Paché (Rosario), argues that (i) the government

"entrapped" him by inducing criminal conduct that he was not

predisposed to commit and (ii) he was entitled to a much more

lenient sentence because of his substantial assistance to the

government. The other defendant, Ramón Pérez-Mejías (Pérez),

argues that the district court erred in not vacating his guilty

plea at sentencing. Both appeals raise the threshold issue of

whether they are barred by the appeal waivers contained in

defendants' plea agreements. For the reasons discussed below, we

affirm both judgments.

Rosario pled guilty pursuant to a plea agreement, which

contained the following appeal waiver: "Defendant agrees that if

this Honorable Court accepts this agreement and sentences hi[m]

according to its terms and conditions, defendant waives and

surrenders his right to appeal the conviction and sentence in this

case." In that agreement, the parties further agreed "to recommend

a sentence at the lower end of the applicable guideline range," and

Rosario ultimately received a sentence two months below the bottom

of that range.

-3- In his appellate brief, Rosario makes no mention of the

appeal waiver. Nor did he file a reply brief addressing the appeal

waiver even though the government's brief primarily argued that

Rosario's appeal was barred by that waiver. Rather, his brief

makes two bare-boned merits arguments, namely, that the government

committed entrapment by inducing him to commit a crime that he was

not predisposed to commit and that he was entitled to a more

lenient sentence due to his substantial assistance.

Where, as here, a defendant agrees to waive his right to

appeal but then appeals and does not address the appeal waiver in

his appellate brief, "he forfeits any right to contend either that

the waiver should not be enforced or that it does not apply."

United States v. Miliano,

(1st Cir. 2007).

Rosario's appeal "is subject to dismissal for this reason alone."

.

Moreover, even if we were to overlook the appeal waiver

and Rosario's failure to address it, his appellate arguments would

be deemed waived because they are not adequately developed. United

States v. Zannino,

(1st Cir. 1990). Both arguments

are made only in a conclusory fashion, primarily in the summary of

argument and argument headings; and no attempt is made to apply the

generally stated legal principles to the facts. Such briefing is

patently insufficient to warrant appellate review. United States

-4- v. Martí-Lón,

, 299 n.2 (1st Cir. 2008); Casillas-Díaz

v. Palau,

(1st Cir. 2006).

Like Rosario, Pérez waived his right to appeal the

"judgment and sentence" if the district court "accept[ed] [his

plea] agreement and sentence[d] him according to its terms and

conditions." However, unlike Rosario, Pérez does not entirely

ignore the appeal waiver in his appellate brief. He repeatedly

mentions the waiver in the context of arguing that his plea was

unknowing. Nevertheless, he does not address the waiver's effect

on his right to appeal. So, it could be argued that Pérez's appeal

should also be dismissed under Miliano. The real difference is

that the government, in its brief, affirmatively waived any

argument that the appeal waiver bars Pérez's appeal from the

district court's failure to vacate his guilty plea. We therefore

proceed to consider the merits of Pérez's appeal.

On the merits, Pérez's sole argument is that the district

court erred in not considering his statements at sentencing as a

request to withdraw his plea and in not granting that request. If

a defendant moves to withdraw his guilty plea before sentencing and

the district court denies the motion, that denial is reviewed for

abuse of discretion. United States v. Mescual-Cruz,

(1st Cir. 2004). However, if a defendant does not move to withdraw

his guilty plea before sentencing, he cannot mount an appellate

challenge to the district court's failure to allow him to do so.

-5- United States v. Pimentel,

(1st Cir. Aug.

21, 2008). Here, Pérez filed no motion to withdraw his guilty plea

before sentencing. Moreover, the district court was not required

to treat Pérez's various questions about the plea agreement and the

presentence report during the sentencing hearing as a request to

withdraw his guilty plea. This is particularly so because when the

court stated its belief that Pérez was not seeking to withdraw his

plea, neither Pérez nor his counsel said anything to the contrary.1

Accordingly, Pérez's claim that the district court should have

allowed him to withdraw his plea fails under Pimentel.

The district court's judgments in both cases are

affirmed. See 1st Cir. R. 27.0(c).

1 We note parenthetically that, even if we were inclined to view what happened at sentencing as a denial of a request to withdraw the plea, such a denial would not be an abuse of discretion. This conclusion derives from the timing of the request (on the day of sentencing, more than three months after the plea was accepted) and the lack of any claim of actual innocence. See United States v. Sousa,

(1st Cir. 2006).

-6-