APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Pérez-Giménez, U.S. District Judge.
Raymond E. Gillespie on brief for appellant.
Rosa Emilia Rodríguez-Vélez, Unites States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martí nez, Assistant United States Attorney, on brief for appellee.
Before Kayatta, Selya, and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
Santos J. Miranda-Martinez (" Miranda" ) appeals his sentence following his guilty plea to drug trafficking crimes. He argues that he is entitled to resentencing because the government breached the terms of his plea agreement, and because the district court erroneously imposed a two-level firearm enhancement under the United States Sentencing Guidelines. Finding neither argument persuasive, we affirm.
Miranda was indicted in 2011 in the District of Puerto Rico for conspiring to import cocaine into the United States (count one) and conspiring to possess cocaine with the intent to distribute (count two). In 2012, a second indictment charged that, with respect to a different conspiracy, Miranda conspired to possess heroin, cocaine, and marijuana with the intent to distribute (count one); aided and abetted the distribution of those controlled substances (counts two through four); and conspired to possess firearms in furtherance of a drug trafficking crime (count five). At Miranda's request, the two cases were consolidated for his change of plea hearing and sentencing. Miranda pled guilty to count one in both indictments pursuant to a plea agreement with the government.
The district court sentenced Miranda to 293 months' imprisonment for count one in each of the two cases, with the terms to be served concurrently, and dismissed the remaining counts in both indictments. The district court calculated the guidelines range using a total offense level above that recommended by the parties in the plea agreement, and also imposed a firearm enhancement not contemplated in the agreement, thereby permitting Miranda to appeal his sentence notwithstanding the plea agreement's waiver of appeal clause. See United States v. Fernandez-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010).
A. The Alleged Breach of the Plea Agreement
Miranda first argues that the government violated the plea agreement when one of the prosecutors stated facts known to the government relating to his possession of firearms during the time period alleged in the second indictment. Because Miranda did not make this argument in the district court, we review for plain error. See Puckett v. United States, 556 U.S. 129, 133-34, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). While Puckett stated that plain error review applies " in the usual fashion" to forfeited arguments that the government breached a plea agreement, id. at 134, the Supreme Court also observed in Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), that the fault with respect to the government's failure to uphold its end of a plea agreement " rests on the prosecutor, not on the sentencing judge." And we have ourselves said the same. United States v. Riggs, 287 F.3d 221, 225 (1st Cir. 2002) (" Although plain
error review usually applies to errors committed by the court, we have also assessed governmental breaches of plea bargains, in the absence of a contemporaneous objection, under this same standard." ). In any event, for the following reasons, we find that the prosecutor's comments at Miranda's sentencing hearing likely did not ...