United States Court of Appeals For the First Circuit

Nos. 21-1892 21-1893

UNITED STATES OF AMERICA,

Appellee,

v.

ÁNGEL LUIS CRUZ-AGOSTO, a/k/a Bebo Sambo, t/n Angel Luis Cruz-Agosto,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

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

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

May 14, 2024 MONTECALVO, Circuit Judge. Ángel Cruz-Agosto was

convicted as a felon in possession of a firearm in violation of

, 922(g)(1), and 924(a)(2) following the entry of a

guilty plea pursuant to a plea agreement. Cruz-Agosto now appeals

his sentences in relation to this conviction and the revocation

sentence he received for committing these crimes while serving a

term of federal supervised release. Cruz-Agosto focuses his appeal

on an alleged breach of the plea agreement by the prosecutor at

sentencing. For the reasons that follow, we affirm the sentences

given by the district court.

I. Background1

On January 8, 2020, Puerto Rico Police Department agents

in an unmarked vehicle pulled up to a stopped SUV to check on the

occupants. Cruz-Agosto was seated in the driver's seat when the

agents approached; a woman, the passenger in the car, was also

standing by the open passenger door. While talking to the

passengers, one of the agents observed Cruz-Agosto pull a

tan-colored pistol from his waistband area and drop it on the floor

behind the front-passenger seat. The agents then ordered both

individuals away from the vehicle; the agents searched the car and

1 Because this appeal follows a guilty plea, "we glean the following relevant facts from the plea agreement, the undisputed sections of the presentence investigation report, and the transcripts of the change-of-plea and sentencing hearings." United States v. Spinks,

, 97 (1st Cir. 2023) (cleaned up).

- 2 - seized a 9mm Glock pistol and a silver Raven Arms pistol, as well

as forty rounds of 9mm caliber ammunition. The Glock pistol had

been modified to shoot more than one round of ammunition from a

single pull of the trigger. Neither occupant had a firearms

license. The agents arrested Cruz-Agosto, and a grand jury charged

him with a one-count indictment. He was on federal supervised

release at the time of the arrest.2

In May 2021, Cruz-Agosto entered into a plea agreement

with the government. The plea agreement calculated a Total Offense

Level ("TOL") of nineteen. Although the plea agreement did not

calculate Cruz-Agosto's Criminal History Category ("CHC"), the

parties agreed to jointly recommend a sentence of thirty-seven

months' imprisonment irrespective of the CHC. The parties

anticipated that Cruz-Agosto may have a higher CHC than I. The

parties also agreed that Cruz-Agosto "may argue for a concurrent

sentence in the revocation of supervised release . . . while the

[g]overnment reserve[d] the right to argue for a consecutive

sentence of [four] months of imprisonment."

On June 4, 2021, at a change-of-plea hearing,

Cruz-Agosto, pursuant to the plea agreement, pled guilty to the

2 Cruz-Agosto had previously pled guilty to one count of conspiracy to possess with intent to distribute controlled substances within a protected location and had been sentenced to eighty-seven months' imprisonment followed by six years of supervised release, which he had been serving at the time of arrest.

- 3 - one-count indictment as a felon who knowingly and unlawfully

possessed two firearms in violation of

, 922(g)(1),

and 924(a)(2). A Presentence Investigation Report ("PSR") was

subsequently prepared by the probation office. Like the parties,

the PSR calculated the TOL as nineteen. However, the PSR

calculated a CHC of V, due to the applicable criminal history score

of eleven. Accordingly, the guidelines sentencing range ("GSR")

under the United States Sentencing Guidelines was fifty-seven to

seventy-one months' imprisonment.

The district court subsequently held sentencing hearings

both on Cruz-Agosto's new conviction and on the revocation of his

supervised release. At sentencing on the new conviction,

Cruz-Agosto's counsel reiterated that the parties were jointly

recommending thirty-seven months' imprisonment. In support of the

parties' request for a below-guidelines sentence, Cruz-Agosto's

counsel urged the court to consider his strong familial

relationships and "the overrepresentation" of Cruz-Agosto's

criminal history. The district court asked the government if it

had anything to add, and the government responded, "just that we

are standing by the plea agreement and recommendation of

[thirty-seven] months."

The district court agreed with the calculations in the

PSR as to the TOL and CHC. Like the PSR, based on the TOL and

CHC, the district court calculated the GSR as fifty-seven to

- 4 - seventy-one months' imprisonment. The district court found,

however, that "the sentence recommended by the parties does not

reflect the seriousness of the offense, does not promote respect

for the law, does not protect the public from further crimes by

Mr. Cruz[,] and does not address the issues of deterrence and

punishment." Accordingly, the district court sentenced

Cruz-Agosto to a within-guidelines sentence of seventy-one months'

imprisonment, followed by a three-year term of supervised release.3

Immediately following that hearing, the district court

held a sentencing hearing for the revocation of Cruz-Agosto's

supervised release. Cruz-Agosto requested a revocation sentence

of twelve months' imprisonment to run concurrently with his other

sentence. When it came time for the government to make its

recommendation, it stated in full:

Your Honor, when [the government] and [Cruz-Agosto] negotiated this agreement, it contemplated that the government would ask for a consecutive four months on top of the sentence rendered by the [c]ourt on the new case. Now that the [c]ourt has sentenced above that recommendation, I don't necessarily feel comfortable, given the agreement, asking that the revocation be consecutive.

So I will simply leave this in the [c]ourt's discretion, unless the [c]ourt wants a more specific position from the government. I don't want to run afoul of the intent of the

3 Cruz-Agosto objected to the new sentence "based on procedural and substantive unreasonableness." However, he does not pursue these objections on appeal.

- 5 - agreement, which I see as binding on the government, Your Honor.

The district court responded that it "[did]n't think [Cruz-Agosto]

w[ould] complain about [the government] requesting a concurrent

sentence." The government did not reply to the court's remark nor

make any further recommendation as to the revocation sentence.

The district court revoked Cruz-Agosto's supervised

release after finding that Cruz-Agosto had violated the conditions

of his supervised release by committing new crimes. The district

court calculated the applicable guidelines range for the

revocation sentence to be twelve to eighteen months' imprisonment.

Accordingly, the district court sentenced Cruz-Agosto to a

within-guidelines sentence of eighteen months' imprisonment to be

served consecutively to the other sentence imposed.4

Cruz-Agosto filed timely notices of appeal as to both

sentences.

II. Discussion

On appeal, Cruz-Agosto argues that the government

breached its obligation under the plea agreement by not making

further statements in support of the recommended sentence, by not

arguing for a concurrent sentence or a maximum of a four-month

consecutive sentence on the revocation, and by failing to correct

4 At the sentencing hearing, Cruz-Agosto objected to the length of the revocation sentence. However, he does not pursue this objection on appeal.

- 6 - a perceived error made by the district court. For the reasons

that follow, we reject each of these arguments.

A. Standard of Review

Because Cruz-Agosto did not object below to the

purported breaches of the plea agreement, the parties agree that

our review on appeal is for plain error. See United States v.

Lessard,

, 42 (1st Cir. 2022); United States v. Saxena,

(1st Cir. 2000). Plain error requires a defendant

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

and which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Lessard, 35 F.4th at 42

(quoting United States v. Duarte,

(1st Cir. 2001)).

"[A]n error is deemed to affect substantial rights when it likely

affected the outcome of the proceedings." United States v.

Almonte-Nuñez,

(1st Cir. 2014).

B. Breach of Plea Agreement

"When a plea rests in any significant degree on a promise

or agreement of the prosecutor, so that it can be said to be part

of the inducement or consideration, such promise must be

fulfilled." Lessard, 35 F.4th at 42 (cleaned up) (quoting

Santobello v. New York,

(1971)). "Because plea

bargaining requires defendants to waive fundamental constitutional

rights, we hold prosecutors engaging in plea bargaining to the

- 7 - most meticulous standards of both promise and performance."

(quoting United States v. Clark,

(1st Cir. 1995)).

Thus, "[a] defendant is entitled to the benefit of the bargain

struck in the plea deal and to the good faith of the prosecutor."

(cleaned up) (quoting United States v. Matos-Quiñones,

(1st Cir. 2006)).

In our review, we consider the totality of the

circumstances.

"The critical question is whether the

prosecutor's 'overall conduct is reasonably consistent with making

the promised recommendation, rather than the reverse.'"

(cleaned up) (quoting United States v. Canada,

(1st Cir. 1992)). We address each of Cruz-Agosto's arguments

alleging breach in turn.

1. "Lip Service" as to the Recommended Sentence on the New Offense

Cruz-Agosto first alleges that the government breached

the plea agreement by merely making a "scant, neutral statement"

at the sentencing for Cruz-Agosto's new offense, "rather than

affirmatively recommending," the agreed-upon downwardly variant

sentence. In particular, Cruz-Agosto argues that the government

-- to satisfy its obligations under the plea agreement -- is

required to justify its recommendation for a significant downward

variance from the GSR. In doing so, Cruz-Agosto relies heavily on

- 8 - our decision in United States v. Rivera-Ruiz,

(1st

Cir. 2022).

We require prosecutors to pay "more than lip service to,

or technical compliance with, the terms of a plea agreement."

Lessard, 35 F.4th at 42 (quoting Almonte-Nuñez,

).

However, "prosecutors need [not] adhere to any particular form of

words in 'recommending' an agreed sentence, but their overall

conduct must be reasonably consistent with making such a

recommendation." Canada,

. Further, "a prosecutor

normally need not present promised recommendations to the court

with any particular degree of enthusiasm."

.

Here, the government affirmatively stated at sentencing,

"we are standing by the plea agreement and recommendation of

[thirty-seven] months." This was clearly an affirmative

recommendation to the sentencing court, even if it was "simple and

straightforward." United States v. Montañez-Quiñones,

(1st Cir. 2018). Cruz-Agosto does not argue that the

government had an affirmative duty to present any other information

under the plea agreement, and he does not suggest that the

government "conspicuously undermin[ed] its agreed position."

Canada,

. Indeed, "the government at no point

suggested -- or even insinuated -- that the circumstances called

for a different sentence than the one it had agreed to recommend."

Saxena,

. Put another way, "the government did not

- 9 - fail to argue something that it explicitly promised to, nor did

the government explicitly argue anything prohibited by the plea

agreement." United States v. Frazier,

(1st Cir.

2003).

Further, Cruz-Agosto's comparison of this case to

Rivera-Ruiz is unavailing.

. In Rivera-Ruiz, we held

that the government did not breach the plea agreement when it

proffered "additional facts outside the plea agreement" in arguing

for a sentence at the high end of the GSR.

. In

comparing Rivera-Ruiz to the case at hand, Cruz-Agosto argues that

where the government agrees to jointly recommend a downwardly

variant sentence, the government must explicitly describe the

facts that support that downward variance. This argument fails on

several points, and we cannot discern any error here.

First, we note that we have never imposed an obligation

on the government to further explain its recommendation for a

downwardly variant sentence when such an obligation is not explicit

in the plea agreement. See United States v. Gall,

(1st Cir. 2016) (finding no plain error where government

recommended the sentence outlined in the plea agreement but did

not offer additional facts to support that downwardly variant

sentence and instead stated that the PSR's guidelines calculation

was "correct," even where the PSR calculations were higher than

those in the plea agreement). Generally, there is "no affirmative

- 10 - obligation of either advocacy or explication on the prosecutor"

when the plea agreement itself does not impose such a duty.

Lessard, 35 F.4th at 44. The plea agreement here did not require

the government to do more than "jointly recommend a sentence of

[thirty-seven] months of imprisonment," which the government

expressly did.

Second, Cruz-Agosto fails to distinguish between what

the government is obliged to do under the plea agreement and what

the government is permitted to do under the agreement. For

example, in Rivera-Ruiz, we noted that "[t]he plea agreement did

not expressly or implicitly preclude the government from

proffering additional relevant information to support its

recommendation." 43 F.4th at 180. Ultimately, when the

government's introduction of additional relevant information does

not "violate the spirit of the plea agreement through an 'end-run

around' its assurances," we have consistently found such a proffer

to be permissible, even where not obligatory. Id.; see, e.g.,

United States v. Rivera-Rodríguez,

(1st Cir. 2007)

(holding that "the government was free to offer reasons in support

of [its] recommendation" under the plea agreement). But here,

while the government generally was permitted to reiterate some of

the relevant facts at sentencing, it was not obligated to do so.

The government's only obligation at sentencing, under the plea

- 11 - agreement, was "to jointly recommend a sentence of [thirty-seven]

months of imprisonment."

Lastly, Cruz-Agosto argues that the government breached

its duty to provide the sentencing court with relevant information.

See United States v. Reyes-Santiago,

(1st Cir.

2015) (discussing the government's "obligation to furnish relevant

information" (quoting Saxena,

)). At the sentencing

hearing and in his sentencing memorandum, Cruz-Agosto extensively

discussed the factors he believed justified a downward variance,

such as his relationship with his family, his prior work

experience, and the potential overrepresentation of his criminal

history in his CHC calculation. He now suggests on appeal that

the government was required to present this same information to

the sentencing court. Given the terms of the plea agreement, we

are not persuaded that the government had an obligation to repeat

these mitigating factors when Cruz-Agosto himself had already

provided the sentencing court with this relevant sentencing

information. Further, Cruz-Agosto does not suggest that the

government undermined these mitigating facts in any way.

For these reasons, we discern no error -- plain or

otherwise -- in the prosecutor's actions at the sentencing hearing

as to the new offense. The prosecutor's overall conduct was

consistent with making the promised recommendation of thirty-seven

months' imprisonment.

- 12 - 2. Failure to Recommend a Concurrent or a Maximum of a Four-Month Consecutive Sentence on Revocation

Next, Cruz-Agosto argues that the prosecutor was

required to argue for a revocation sentence of no more than a

consecutive four-months' imprisonment. In the same vein,

Cruz-Agosto argues that he had "bargained with the [g]overnment in

order to obtain a total incarceration period no longer tha[n]

[forty-one] months," and, thus, "in th[e] spirit" of the agreement,

the government was required to "request any length of revocation

sentence to run concurrently with the [seventy-one] months." We

find that this argument fails on the third prong of plain error:

prejudice.

To reiterate the relevant facts, as part of the plea

agreement, the parties agreed that the government could "argue for

a consecutive sentence of [four] months of imprisonment" at the

revocation sentencing. At the revocation sentencing hearing, the

prosecutor referenced that the government had reserved the right

to argue for a consecutive four-month revocation sentence but

stated that, in light of the court's seventy-one-month sentence

for the new offense, the prosecutor did not "feel comfortable . . .

asking that the revocation be consecutive" based on the

government's plea obligations. Cruz-Agosto now contends that the

government breached the plea agreement by not explicitly making a

- 13 - concurrent sentencing recommendation and, instead, leaving the

revocation sentence to the court's discretion.

We have reiterated that, under our plain error standard,

"an appellant's substantial rights are deemed to be affected only

when an error 'likely affected the outcome of the proceedings.'"

Montañez-Quiñones,

(quoting Almonte-Nuñez,

). Here, "[t]here is nothing in the record to suggest that

the district court would in fact have imposed the recommended

sentence had the government affirmatively made the recommendation"

requested by Cruz-Agosto. United States v. Sierra-Jiménez,

, 570 (1st Cir. 2024). The record makes clear that the

district court considered the government to be recommending a

concurrent sentence, to the benefit of Cruz-Agosto. Specifically,

the court stated that it did not "think [Cruz-Agosto] w[ould]

complain about [the government] requesting a concurrent sentence."

The district court then simply rejected a concurrent sentence.

Cruz-Agosto has not offered any basis for his argument

that, had the government expressly asked for a concurrent sentence,

the district court would have sentenced him differently. We are

further unpersuaded that the district court would have imposed a

lesser consecutive sentence if the government made an explicit

request for the same. For this reason, Cruz-Agosto has not met

his burden of establishing that any claimed error "affected [his]

- 14 - substantial rights," and Cruz-Agosto has not met the plain error

standard. Sierra-Jiménez, 93 F.4th at 570-71.

3. Failure to Bring Error to Court's Attention

Lastly, Cruz-Agosto insists that the court erred in its

understanding of the PSR's recommendation on the revocation

sentence, and the government subsequently breached the plea

agreement by failing to "bring[] that error to the court's

attention."5 This argument fails on the second prong of plain

error: that any alleged error was clear or obvious.

In particular, Cruz-Agosto points to the sentencing

court's statement that "the [c]ourt agrees with the probation

officer and concludes that a sentence at the high end of the

guideline range is a sentence sufficient, but not greater than

necessary, to comply with . . . Title

(a)." Cruz-Agosto understands this statement to mean

that the sentencing court mistakenly believed that the probation

officer had recommended a sentence at the higher end of the GSR.

Thus, Cruz-Agosto argues that the government had to correct this

misunderstanding "to meticulously adhere to the spirit of the plea

agreement."

5 Notably, Cruz-Agosto does not base this appeal on any alleged mistake by the district court, but instead focuses on the government's breach of its duties.

- 15 - However, the sentencing court's statement is open to

another interpretation: that the court was agreeing with the

representations and guidelines stated in the PSR, which allowed

the court to independently conclude that a sentence at the high

end of the GSR was appropriate. Given this equally plausible

reading of the record, we cannot find that any error (if one

exists) was clear or obvious such that the government was required

to affirmatively correct the district court. This is particularly

true where Cruz-Agosto also did not object to the court's supposed

misunderstanding. For this reason, Cruz-Agosto's final argument

also fails.

III. Conclusion

For the foregoing reasons, we affirm the sentences

imposed by the district court.

- 16 -