United States Court of Appeals For the First Circuit

No. 22-1660

UNITED STATES OF AMERICA,

Appellee,

v.

ESMERALDO BURGOS-BALBUENA,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Montecalvo, Circuit Judges.

Jessica E. Earl, with whom Rachel Brill was on brief, for appellant.

Maarja T. Luhtaru, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

August 23, 2024 LIPEZ, Circuit Judge. Following a high-speed boat chase

off the coast of Puerto Rico, appellant Esmeraldo Burgos-Balbuena

("Burgos"), a citizen of the Dominican Republic, was arrested and

charged with unlawfully reentering the United States after a

previous removal. He accepted responsibility and agreed to plead

guilty. As part of the plea deal, the parties agreed to jointly

recommend an 18-month prison sentence. Nevertheless, the court

sentenced Burgos to 37 months' imprisonment, emphasizing Burgos's

history of repeated unlawful entries and his dangerous evasion of

arrest. On appeal, Burgos argues that the government failed to

comply with the plea bargain. He also challenges his sentence on

procedural and substantive grounds. We affirm.

I.

A. Factual Background

Because we review a sentence arising from a guilty plea,

we base our description of the facts on the plea agreement, the

plea colloquy, the presentence investigation report ("PSR"), and

the transcript of the sentencing hearing. See, e.g., United States

v. Diaz-Serrano,

(1st Cir. 2023).

In December 2021, United States Customs and Border

Protection ("CBP") agents, investigating reports of a suspicious

vessel being launched from La Parguera, Puerto Rico, encountered

Burgos and one other individual, Felix Guzman-Ramos ("Guzman"), in

a boat matching the description provided. Burgos and Guzman,

- 2 - claiming to be fishing, failed to produce the boat's registration

or their identification. When the CBP agents ordered the vessel

to return to shore, Burgos and Guzman instead took off at high

velocity.

A perilous chase ensued. Burgos's boat first headed for

shallow water, compelling the CBP agents to turn back. After

getting temporarily stuck, Burgos's boat came free and sped toward

the CBP agents, forcing the agents to maneuver out of the way

before once again giving chase. The CBP officers fired warning

shots in the direction of the fleeing boat, to no avail. The

agents then positioned their vessel in front of Burgos's boat and

delivered three shots at its engine in an effort to disable it.

In the course of this maneuver, Burgos's boat rammed into the CBP

vessel. Burgos and Guzman again attempted to flee, with the CBP

agents in pursuit. Burgos's boat deliberately rammed the CBP

vessel a second time, causing an agent to fall into the vessel's

helm. Eventually, the CBP agents again shot at the engine of

Burgos's boat, bringing it to a complete stop. Burgos and Guzman

then surrendered, and the CBP agents placed them under arrest due

to their unlawful presence in the United States.

This episode was not Burgos's first unlawful entry into

the United States. Indeed, the plea agreement describes six

previous unlawful entries, stretching back to 2001. Although

Burgos was not criminally charged each time, he was convicted in

- 3 - 2013 for unlawful entry, see

, sentenced to time

served, and subsequently removed to the Dominican Republic.1 In

2018, Burgos was convicted for unlawful reentry, see

(a), and for "[b]ringing in and harboring certain

[non-citizens],"

§ 1324.2 That time, Burgos was sentenced to

18 months' imprisonment, plus three years of supervised release,

and was later ordered removed to the Dominican Republic.

B. The Plea Agreement and PSR

Immediately following his arrest in the instant case,

Burgos accepted responsibility, waived his right to a grand jury

indictment, and consented to being charged by information for a

single count of unlawful reentry. See

(a), (b)(2).

Thereafter, he entered into a plea agreement with the government

that provided for a joint sentencing recommendation of 18 months'

imprisonment, regardless of Burgos's criminal history category

("CHC") or the sentencing range calculated in the PSR. The parties

calculated a total offense level of 15,3 but did not stipulate to

1 Before this conviction, the Dominican Republic Navy informed the United States that Burgos is a well-known organizer of unlawful travel into the United States. 2 After Burgos's initial arrest for this offense, he absconded while on bond and became a fugitive. He was apprehended six months later while attempting to evade federal jurisdiction by returning to the Dominican Republic. 3The total offense level of 15 included a base offense level of eight, U.S.S.G. § 2L1.2(a); a four-level enhancement because the offense involved reentry, id. § 2L1.2(b)(1)(A); a six-level

- 4 - a CHC. The plea agreement specified that "any recommendation by

either party for a term of imprisonment below or above the

stipulated sentence recommendation will constitute a material

breach." It otherwise imposed no duty on the United States and

disclaimed any duty not specified by the agreement.

The PSR, by contrast, calculated a Guidelines sentencing

range of 30 to 37 months' imprisonment, reflecting a total offense

level of 17 and a CHC of III. See U.S.S.G. ch. 5, pt. A (sentencing

table). The total offense level of 17 was based on the same

factors as the plea agreement's calculation of 15, plus a two-level

enhancement for creating a substantial risk of death or serious

bodily injury to another person while evading arrest. See id.

§ 3C1.2. The CHC was based on six criminal history points: one

arising from Burgos's 2013 conviction, id. § 4A1.1(c); three from

his 2018 conviction, id. § 4A1.1(a); and two because the instant

offense occurred during a period of supervised release, id.

§ 4A1.1(d).4

enhancement for Burgos's prior conviction for "[b]ringing in and harboring certain [non-citizens]," id. § 2L1.2(b)(3)(C); and a three-level reduction for acceptance of responsibility, id. § 3E1.1(a)-(b). 4 As we discuss in greater detail below, the Guidelines applied during Burgos's sentencing hearing called for the addition of two criminal history points for offenses committed during a period of supervised release. A subsequent 2023 amendment eliminated this provision, previously imposed under U.S.S.G. § 4A1.1(d). Burgos does not dispute that even without these two additional points, he would still have four criminal history

- 5 - C. The Sentencing Hearing

At sentencing, Burgos's counsel requested an 18-month

sentence, as recommended in the plea agreement. Counsel argued

that this sentence was justified by Burgos's immediate admission

of guilt, as well as mitigating circumstances, including Burgos's

childhood poverty and continued economic challenges. Counsel also

explained that Burgos had unlawfully entered the United States out

of concern for several of his minor children residing in Puerto

Rico. Burgos has twelve adult and minor children in total, some

residing in the Dominican Republic and others in the United States.

In addition, the agreed-upon sentence reflected Burgos's plans to

start a business in the Dominican Republic, the difficult

conditions of pre-sentence detention (such as being under

22-hour-a-day lockdown and having little communication with his

family), and the possibility of future post-incarceration

immigration detention. Speaking for himself, Burgos again

accepted responsibility, reiterated several of counsel's points,

and added that he hoped to return to the Dominican Republic as

soon as possible to care for his mother, who was in poor health.

points, thus placing him in the same CHC of III. See U.S.S.G. ch. 5, pt. A (sentencing table) (stating that 4-6 criminal history points equate to a CHC of III).

- 6 - The government stated that it "stands by its

recommendation in the plea agreement." For the most part, the

government simply agreed with the reasons offered by Burgos's

counsel, rather than "repeat [them] for the record." The

government emphasized, however, that Burgos "immediately accepted

responsibility."

The district court accepted the PSR's adjusted base

offense level of 17 and CHC of III. The court observed that Burgos

is a "repeat offender" whose history of unlawful entry followed a

similar pattern of conduct to the present case. In discussing the

instant offense, the court emphasized that Burgos had created an

"imminent threat to the safety of" the CBP agents who arrested

him. Considering the totality of the circumstances, the district

court found a sentence at the "upper end of the guideline range

[to be] proper," sentencing Burgos to 37 months' imprisonment.

Burgos's counsel asked to "preserve an objection to

substantive and procedural grounds and unreasonableness of the

sentence," without further explanation. In this timely appeal, in

addition to challenging the sentence as unreasonable, Burgos

argues that the government failed to honor its obligations in the

plea agreement.

- 7 - II.

A. The Government's Adherence to the Plea Agreement

We start with Burgos's contention that the government

implicitly repudiated the plea agreement during the sentencing

hearing. Burgos did not raise this argument in the district court,

and he is thus entitled only to plain-error review of that claim

on appeal. See United States v. Sierra-Jiménez,

(1st Cir. 2024). Under our "rigorous" plain-error standard, United

States v. Ortiz,

(1st Cir. 2014), Burgos must

show "(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected the [appellant's] substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of judicial proceedings," United States v.

Cheveres-Morales,

(1st Cir. 2023) (alteration in

original) (quoting United States v. Duarte,

(1st

Cir. 2001)).

"There is no doubt whatsoever that plea agreements play

an 'important role . . . in our criminal justice system.'" United

States v. Cortés-Lopéz,

(1st Cir. 2024)

(omission in original) (quoting United States v. Frazier,

(1st Cir. 2003)). Accordingly, "we 'hold prosecutors to the

most meticulous standards of promise and performance.'" United

States v. Brown,

(1st Cir. 2022) (internal

quotation marks omitted) (quoting United States v.

- 8 - Marín-Echeverri,

(1st Cir. 2017)). We often

look to traditional contract principles to understand the parties'

obligations under the plea bargain and to evaluate the government's

performance. Id.; see also Puckett v. United States,

(2009) ("[P]lea bargains are essentially contracts.").

We have no "magic formula" for evaluating claims of

breach. United States v. Gonczy,

(1st Cir. 2004).

Rather, we look to the totality of the circumstances to assess

whether the government's "overall conduct" is "reasonably

consistent" with the promised sentencing recommendation, "rather

than the reverse." United States v. Canada,

(1st Cir. 1992); see also Cortés-Lopéz,

(stating that our analysis examines the "net effect of the

government's behavior" to determine whether, on balance, it has

"undermine[d] the benefit of the bargain" (internal quotation

marks omitted) (quoting Frazier,

)).

Burgos effectively concedes that the government complied

with the express terms of the plea agreement. The agreement

obliged the government only to recommend an 18-month prison

sentence, and the government did exactly that. Burgos argues,

nonetheless, that the government implicitly repudiated the plea

agreement, invoking our precedent cautioning that the government

may not merely pay "lip service" to the bargain, "reaffirm[ing] a

promise to the defendant out of one side of [its] mouth" but

- 9 - "subvert[ing] it out of the other side." United States v.

Almonte-Nuñez,

(1st Cir. 2014). Such cases,

however, typically involve the government subtly advocating for a

greater-than-recommended sentence or implicitly undermining the

sentence the parties agreed to recommend. See, e.g., United States

v. Mojica-Ramos,

(1st Cir. 2024) (finding breach

where the prosecutor labeled the defendant as "exception[ally]"

dangerous and emphasized uncharged criminal conduct); Gonczy,

(finding breach where no "impartial observer [would]

think that [the prosecutor] thought [the agreed-upon sentence]

was . . . adequate" given her intense focus on the harm done by

the defendant; Canada,

(finding breach where

the prosecutor's comments in support of the recommended sentence

were "grudging and apologetic" and the prosecutor emphasized facts

supporting an enhancement not included in the plea agreement).

Here, by contrast, the record contains no such wink or nod by the

government seeking a harsher sentence than the one embraced by the

agreement. The prosecutor simply affirmed the agreed-upon

sentence, and, indeed, endorsed Burgos's arguments for it, while

emphasizing his cooperation.

Undeterred, Burgos asserts that the government was

obligated to do more in this instance. He first argues that the

government had to justify the 18-month recommendation because it

amounted to a downward variance from the sentencing range

- 10 - calculated by the PSR. Usually, however, absent an express

statement in the plea deal, the government has "no affirmative

obligation of either advocacy or explication," United States v.

Lessard,

(1st Cir. 2022), even when recommending

a downward variance, see United States v. Cruz-Agosto,

(1st Cir. 2024). Here, the agreement expresses no such

duty.

True, in Cortés-Lopéz we recognized a need for "minimal

explanation" in the circumstances of that case.

.

There, we concluded that the government had breached the plea deal

when, pursuant to that agreement, it recommended 24 months'

probation whereas the Guidelines recommended 78-97 months'

imprisonment.

. Given that great disparity and the

government's apparent agreement with a greater total offense level

than the one contemplated by the plea deal,5 "the district court

was left to speculate about what rationale might reasonably support

such a seemingly off-kilter, well-below guidelines

recommendation."

.

In Cortés-Lopéz, the defendant pleaded guilty to financial 5

fraud, and the jointly recommended sentence contemplated by the plea agreement was premised on a loss amount of approximately $750,000.

. The PSR, however, calculated a loss amount of $5.4 million, yielding a higher total offense level.

. At the sentencing hearing, the prosecutor stated that the PSR was "correct" but that the government was "standing by its plea agreement recommendation."

- 11 - This case is plainly distinguishable. Here, the

government requested a comparatively modest downward variance,

and, in any event, it did explain the rationale behind that

recommendation. The prosecutor expressly agreed with Burgos's

reasoning for a lower sentence and underscored that Burgos had

immediately accepted responsibility, thereby saving judicial

resources. The government thus went above and beyond its

obligation to support the plea deal, affirmatively arguing in favor

of the jointly recommended sentence.

Burgos also argues that the prosecutor was obligated to

inform the court that Guzman, Burgos's codefendant, received a

21-month sentence from a different judge for engaging in the same

conduct. According to Burgos, Guzman also pleaded guilty in

exchange for a jointly recommended sentence of 18 months. Although

Guzman also received a sentence higher than the recommendation,

the increase was substantially less, and the sentence did not

include the enhancement imposed on Burgos for endangering the lives

of law enforcement. Burgos asserts that the prosecutor had a duty

to bring this discrepancy to the court's attention and to justify

the government's determination to forgo the endangerment

enhancement in his plea agreement, particularly because she also

represented the government at Guzman's sentencing. See, e.g.,

United States v. Romero,

(1st Cir. 2018) (stating

that courts should minimize sentencing disparities between

- 12 - "similarly situated . . . codefendants" (quoting United States v.

Demers,

(1st Cir. 2016))).

Burgos, however, cites no authority for requiring the

government to flag potential sentencing disparities to avoid

breaching a plea agreement, absent any express duty to do so.

Nonetheless, even assuming such a duty exists, we are unable to

assess the claimed disparity because, aside from a copy of Guzman's

plea deal, the record before us contains no information about

Guzman's sentencing proceeding, including Guzman's criminal

history and the district court's reasoning for his sentence.

Absent any facts to support his claim that he and Guzman were

similarly situated but disparately sentenced, Burgos's

disparity-based claim necessarily fails. See United States v.

Rodríguez-Adorno,

(1st Cir. 2017) (holding, in

the context of a substantive challenge to a sentencing disparity

between codefendants, that the defendant must "furnish the court

with enough relevant information to permit a determination that he

and his proposed comparators are similarly situated").

In sum, we reject Burgos's contention that the

government implicitly repudiated the plea agreement. The

government complied with the express terms of the agreement and

did nothing to tacitly undermine it. Burgos's arguments that the

government was obligated to do more in this case do not find

support within our case law.

- 13 - B. The Sentence's Procedural and Substantive Reasonableness

In assessing Burgos's arguments that the district

court's sentence was unreasonable, we employ a "bifurcated

inquiry." United States v. Pupo,

(1st Cir. 2021).

We first assure ourselves of the sentence's procedural

reasonableness before turning to the sentence's substance.

Examples of procedural error include "failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence -- including an

explanation for any deviation from the Guidelines range." Id.

(quoting United States v. Díaz-Rivera,

(1st Cir.

2020)). A sentence is substantively reasonable if the district

court has "provided a 'plausible sentencing rationale' and reached

a 'defensible result.'"

at 29 (quoting United States v.

Flores-Quiñones,

(1st Cir. 2021)). In conducting

our inquiry, "we owe deference to the sentencing court's exercise

of informed discretion,"

and must view the sentence "in light

of the totality of the circumstances,"

(quoting United States

v. Flores-Machicote,

(1st Cir. 2013)).

1. Procedural Reasonableness

Burgos argues that the district court erred procedurally

by failing to consider important parts of the record,

- 14 - overemphasizing his criminal history, and improperly calculating

the Guidelines range. At sentencing, Burgos's counsel gave no

substance whatsoever to the procedural challenges Burgos now

presses, asking only in the most generic possible terms to

"preserve an objection [on] . . . procedural grounds." Such "[a]

general objection to the procedural reasonableness of a sentence

is not sufficient to preserve a specific challenge to any of the

sentencing court's particularized findings" and thus we review

this claim for plain error. United States v. Soto-Soto,

, 448 n.1 (1st Cir. 2017).6

(a) Ignoring Important Facts

Burgos argues that the district court erred in its

sentencing pronouncement because it did not specifically mention

the plea agreement or Burgos's acceptance of responsibility, and

the judge said little about mitigating factors.7 But a sentencing

6 The government argues that Burgos has compounded his default on appeal by failing to apply our four-part plain-error test, thus waiving the procedural claim altogether. "[W]e need not decide between waiver and forfeiture because '[w]here a defendant's claim would fail even if reviewed for plain error, we have often' simply proceeded to the merits." United States v. Grullon,

, 32 (1st Cir. 2021) (second alteration in original) (quoting United States v. Brake,

(1st Cir. 2018)). We adopt that approach here. 7 The court did discuss Burgos's primary mitigating argument about growing up in poverty, finding this argument lacking because his history of unlawful entries began well into adulthood, and thus they were not, in the court's view, "prompted by having a deprived childhood."

- 15 - court need not specifically rebut every argument that a defendant

makes, so long as the record makes reasonably clear that the court

considered the pertinent sentencing factors. See, e.g., United

States v. Coplin-Benjamin,

(1st Cir. 2023).

Likewise, a sentencing court is not "obliged to explain why it

rejected the parties' joint recommendation" of a sentence, so long

as it explains the sentence it ultimately selects. United States

v. Bermúdez-Meléndez,

(1st Cir. 2016). Here,

the court gave a lengthy explanation, emphasizing Burgos's past

offenses and the dangerous boat chase.

At the outset of the hearing, moreover, the court stated

that it had reviewed Burgos's plea agreement, which discussed

Burgos's acceptance of responsibility, and the PSR, which

discussed mitigating factors. Such statements by the sentencing

court are entitled to deference, and "[w]e are particularly likely

to credit" them "when [the court] imposes a sentence within the

guidelines range, and when the particular fact the court allegedly

neglected was a focus of argument prior to imposition of the

sentence." United States v. Quinoñes-Otero,

(1st

Cir. 2017) (citation omitted). The court imposed a sentence within

the Guidelines range, and the discussion at the hearing consisted

entirely of the plea agreement, Burgos's acceptance of

responsibility, and his mitigating factors. We thus cannot

conclude that the court overlooked these subjects.

- 16 - (b) Overemphasizing Criminal History

Burgos next argues that the court relied too heavily on

his criminal history. Burgos's history of unlawful entry

unquestionably weighed heavily in the court's sentencing

determination, particularly because the instant offense closely

resembled those prior offenses. Basing the sentence on this

"statutorily authorized sentencing consideration[,]" however,

"cannot constitute procedural error." United States v.

Contreras-Delgado,

(1st Cir. 2019); see also

(a)(1). After all, the "decision to give greater

weight to particular sentencing factors over others" lies "within

the sound discretion of sentencing courts." United States v.

Santini-Santiago,

(1st Cir. 2017) (quoting United

States v. Gibbons,

(1st Cir. 2009)). "We are

especially loath" to disturb the court's weighing of sentencing

factors on plain-error review.

Accordingly, we reject

Burgos's argument that the district court leaned too heavily on

his criminal history.

(c) Improperly Calculating Criminal History Points

Finally, Burgos contests the court's calculation of six

criminal history points, yielding a CHC of III. Burgos objects to

the addition of two points for committing the instant offense

- 17 - during a period of supervised release.8 The PSR assigned these

points because Burgos was under supervised release until March 4,

2021, and he admitted to entering the United States unlawfully on

February 20, 2021. Though the PSR thus treated February 20 as the

date of the instant unlawful entry offense, Burgos disputes that

he committed the offense on that date.

We need not determine whether the district court erred,

as Burgos's argument fails our plain-error test regardless. "[A]

court does not commit plain error when it incorrectly calculates

and applies a criminal history score that nonetheless results in

the defendant being placed in the correct Criminal History

Category." United States v. Delgado-Sánchez,

(1st

Cir. 2017). Here, a calculation of four criminal history points

instead of six would have produced the same CHC of III, and thus

Burgos's Guidelines sentencing range would have been the same with

8 At the time, the Guidelines provided for two criminal history points "if the defendant committed the instant offense while under . . . supervised release." U.S.S.G. § 4A1.1(d) (2021 ed.). The Guidelines now call for only one point in such cases, and only if the defendant's criminal history points otherwise add up to seven or more. Id. § 4A1.1(e). Burgos argues that we should consider this revision in reviewing his sentence. This argument clearly fails. When evaluating the sentence's reasonableness, we may only consider post-sentencing Guidelines amendments that merely "clarify" the guideline provision, "without purporting substantive change." United States v. Crudup,

(1st Cir. 2004). The amendment Burgos references was clearly substantive.

- 18 - either number of criminal history points. See U.S.S.G. ch. 5, pt.

A (sentencing table).

Nonetheless, Burgos argues that the sentencing court

might have imposed a lesser sentence if he had fewer criminal

history points, even within the same CHC. That speculation,

however, finds no support in the record. The court explained that

a top-of-the-Guidelines sentence was proper because of Burgos's

prior unlawful entries and his endangerment of law enforcement.

Those rationales would apply equally whether he had four or six

criminal history points.

Concluding that none of Burgos's objections overcome our

plain-error standard of review, we reject his contention that the

sentence was procedurally unreasonable.

2. Substantive Reasonableness

Lastly, Burgos's attack on the substantive

reasonableness of his sentence is easily dispatched.9 "Challenging

a sentence as substantively unreasonable is a burdensome task in

any case, and one that is even more burdensome where, as here, the

9 The government argues that Burgos has waived this claim because his arguments regarding substantive reasonableness are inscrutably intertwined with his arguments regarding procedural error. While the government's waiver argument has some force, we once again elect to "jump[] to the 'simplest way to decide' [Burgos's] allegation[]," which, because it so clearly fails, is on the merits. Grullon, 996 F.3d at 32 (quoting United States v. McCullock,

(1st Cir. 2021).

- 19 - challenged sentence is within" the Guidelines range. United States

v. Clogston,

(1st Cir. 2011). As we have

discussed, the district court offered a "plausible sentencing

rationale" relating to Burgos's criminal history and endangerment

of law enforcement. Flores-Quiñones,

(quoting

United States v. Sayer,

(1st Cir. 2019)).

The court's justification was clearly defensible.

Simply put, Burgos has not adduced any of the "powerful mitigating

reasons" necessary to convince us that this within-Guidelines

sentence falls outside the "universe of reasonable sentencing

outcomes" for a repeat offender who, in the instant offense, placed

federal agents in serious peril while evading arrest.10 Clogston,

-93 (quoting United States v. Madera-Ortiz,

(1st Cir. 2011)). We thus reject his substantive

challenge.

* * *

For the reasons given, we affirm Burgos's sentence.

So ordered.

10 We note that Burgos does not repeat, as part of his substantive unreasonableness challenge, his contention concerning an impermissible sentencing disparity between himself and his codefendant, Guzman.

- 20 -