APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Daniel R. Domínguez, U.S. District Judge.
Lisa Aidlin, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee.
Before Torruella, Kayatta, and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
Defendant-appellant David Oppenheimer-Torres (" Oppenheimer" ) appeals his sentence after pleading guilty of conspiring to possess and distribute illegal drugs near a public housing facility, in violation of 21 U.S.C. § § 841(a)(1), 846, and 860, and of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Because the sentence was within the range specified in a plea agreement containing a waiver of appeal, because we find that the prosecutor's false start in performing the prosecutor's duties under that plea agreement did not constitute a breach of the agreement, and because we find in Oppenheimer's arguments no other request for setting aside the agreement, we dismiss the appeal.
Because this appeal follows a guilty plea, we derive the facts from the plea
agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (" PSR" ), and the sentencing hearing transcript. United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013). From 2004 to 2012, Oppenheimer was the leader of a drug trafficking organization operating in the public housing projects of Carolina, Puerto Rico. Oppenheimer acted as an " enforcer" and oversaw the supply and distribution of cocaine, heroin, and other drugs. In May 2012, a grand jury indicted Oppenheimer, along with 73 other individuals, on six drug-trafficking-related charges. He pleaded guilty to conspiring to traffic drugs near public housing and to aiding and abetting the use or carrying of a firearm in connection with drug trafficking. The district court dismissed the remaining counts.
A. The Plea Agreement
The written plea agreement (the " Agreement" ) executed in accord with Federal Rule of Criminal Procedure 11(c)(1)(B) stipulated that each party would recommend a sentence that fell within the range of 135-168 months on the conspiracy charge. The parties selected this range under the United States Sentencing Guidelines by, in relevant part, assuming a base level Criminal History Category (in other words, no criminal history). The Agreement further provided that the government would not recommend a sentence in excess of 168 months on the conspiracy charge even if the assumed Criminal History Category turned out to be understated. Finally, the Agreement called for a statutory minimum sentence of 60 months for the firearm charge, to run consecutively. All remaining counts were dismissed.
The Agreement included a clause waiving Oppenheimer's right to appeal " provided that the defendant is sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provision of this Plea Agreement." At the change of plea hearing, the court determined that Oppenheimer's guilty plea was intelligent and voluntary.
B. The Sentencing Hearing
After reading from the Agreement at sentencing, the judge asked the prosecutor for the government's position, stating " you have the right to request the ...