Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 20-1925

UNITED STATES OF AMERICA,

Appellee,

v.

DAMIEN BYNOE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Barron, Selya, and Gelpí, Circuit Judges.

George F. Gormley, Stephen Super, and George F. Gormley, P.C. on brief for appellant. Nathaniel R. Mendell, Acting United States Attorney, and Karen L. Eisenstadt, Assistant United States Attorney, on brief for appellee.

January 12, 2022 PER CURIAM. A federal grand jury sitting in the District

of Massachusetts charged defendant-appellant Damien Bynoe with one

count of possession with intent to distribute heroin and cocaine,

see

(a)(1), and one count of being a felon in

possession of a firearm and ammunition, see

(g)(1).

On January 8, 2020, the appellant and the government entered into

a plea agreement (the Agreement), and the appellant tendered a

guilty plea to both counts of the indictment. In the Agreement,

the government promised to recommend a sentence within the

guideline sentencing range (GSR) as computed by the district court.

[Material redacted].

The presentence investigation report recommended a

combined GSR (for the two counts) of 188 to 235 months. Because

the appellant had three prior convictions for violent felonies

and/or serious drug offenses, he was subject to a fifteen-year

mandatory minimum on the firearms count. See

§ 924(e). In

its sentencing memorandum, the government sought a within-the-

range 210-month aggregate sentence. It premised this sentence

recommendation, inter alia, on the appellant's admitted status as

an armed career criminal. It also explained, [material redacted],

why it was not recommending either a downward departure or a below-

guidelines sentence. For his part, the appellant filed a

sentencing memorandum in which he argued his entitlement for either

a downward departure or a below-guidelines sentence.

- 2 - The district court convened the disposition hearing

[material redacted] on September 8, 2020. Defense counsel

complained that the government was "reneging" on its reduced-

sentence commitment. When the court sought to clarify defense

counsel's argument, counsel insisted that he wanted the court to

ask the prosecutors "why they have reneged on th[e] [A]greement."

The court rejoined that the Agreement, by its terms, did not commit

the government to take any particular action but, rather, merely

bound the government to "consider" taking such action. The court

further explained that the prosecutor had made it pellucid that

the government had considered the subject. To this, defense

counsel replied: "I agree with that, Judge." The court then

concluded the discussion by stating, "All right. Then they haven't

reneged on their agreement." Defense counsel neither demurred nor

objected.

[Material redacted]. Without objection, the court set

the GSR at 188 to 235 months and noted the applicability of the

fifteen-year mandatory minimum with respect to the firearms count.

The government recommended an aggregate incarcerative sentence of

210 months, and the defense recommended an aggregate incarcerative

sentence of 120 months. The court imposed an aggregate sentence

of 210 months, to be followed by a six-year term of supervised

release. This timely appeal ensued.

- 3 - In this venue, the appellant argues that the government

should have recommended a sentence reduction. [Rephrased

sentence; original sentence redacted]. The appellant further

argues that he "pleaded guilty . . . in reliance on that promise."

This is precisely the claim that the appellant withdrew before the

district court. It is, therefore, waived. See United States v.

Carrasco-De-Jesús,

(1st Cir. 2009) (defining waiver

as "intentional relinquishment of a known right"); see also United

States v. Orsini,

(1st Cir. 2018) (holding that

"exchange" between the prosecutor and defense counsel made

"evident that the appellant intentionally relinquished" claim);

United States v. Eisom,

(1st Cir. 2009) (finding

waiver when appellant withdrew objection previously raised);

United States v. Rodriguez,

(1st Cir. 2002)

(holding that "party who identifies an issue, and then explicitly

withdraws it has waived the issue").

Even if not waived, we would find no plain error in the

district court's determination that the government had not reneged

on any promise made to the appellant. See United States v. Duarte,

(1st Cir. 2001) (holding that plain error review

applies when claim of error is not preserved below and delineating

elements of plain error review); see also United States v. Colón-

Rosario,

(1st Cir. 2019) (applying plain error

standard to claimed breach of plea agreement). The Agreement

- 4 - cannot support in any clear or obvious way a claim that the

government "reneged" on a promise or commitment to recommend a

sentence reduction. [Rephrased sentence; original sentence

redacted].

We add a coda. To the extent that the appellant attempts

to raise other arguments on appeal, those arguments are doubly

flawed. First, inasmuch as the appellant received a within-

guidelines sentence, those other arguments are barred by the

waiver-of-appeal provision contained in the Agreement. See United

States v. O'farrill-López,

(1st Cir. 2021); United

States v. Teeter,

(1st Cir. 2001). Second, those

arguments were not adequately developed below and, thus, were not

preserved for appeal. See United States v. Pinkham,

(1st Cir. 2018); United States v. Zannino,

(1st

Cir. 1990); see also Teamsters Union, Local No. 59 v. Superline

Transp. Co.,

(1st Cir. 1992) ("If any principle is

settled in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal.").

We need go no further. For the reasons elucidated above,

the judgment of the district court is summarily affirmed.

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

- 5 - Note: The unexpurgated version of this opinion remains

under seal. See Order of Court dated January 12, 2022.

- 6 -