United States Court of Appeals For the First Circuit
No. 24-1191
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS MIGUEL GARCÍA-TORRO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.
Franco L. Pérez-Redondo, Assistant Federal Defender, with whom Rachel Brill, Federal Public Defender, was on brief, for appellant. Gregory Bennet Conner, 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.
May 29, 2026 THOMPSON, Circuit Judge.
Overview
Police busted García for having a machinegun while on
supervised release for a similar weapons crime.1 He eventually
pled guilty under a plea deal with the government to illegally
possessing that gun. See 18 U.S.C. § 922(o).2 And as part of the
agreement, he and the government promised to "seek a [prison]
sentence within the applicable guideline[s] range" — a range that
the judge set at 27 to 33 months (the deal also (i) barred García
from arguing for a below-guidelines sentence and the government
from pushing for an above-guidelines term and (ii) put the final
sentencing decision in the judge's hands).
García consistently asked for 27 months. The government
repeatedly asked for 33 months. But the judge ultimately picked
48 months.
A disappointed García now appeals, arguing that the
government breached the plea agreement by giving "lip
service" — and no more — "to its obligation to recommend a
1 García's full name appears in our caption (and we use "García," per Spanish-naming norms). 2 We take the facts from different materials before the district judge — including the indictment, the plea agreement, the uncontested parts of the presentence report, the sentencing memos, and the sentencing transcript. See, e.g., United States v. Diaz- Serrano, 77 F.4th 41, 44 (1st Cir. 2023); United States v. LeBlanc, 169 F.3d 94, 94 (1st Cir. 1999).
- 2 - sentence between 27 and 33 months" (we'll explain the argument's
ins and outs shortly). But we must affirm (for reasons we'll
explain later too).3
Some Legal Basics
A few legal principles set the stage for this opinion.
Plea agreements are contracts. See, e.g., United States
v. Fargas-Reyes, 125 F.4th 264, 270 (1st Cir. 2025); United States
v. Rivera-Cruz, 878 F.3d 404, 408 (1st Cir. 2017). And because
defendants land plea deals only by waiving many constitutional
rights (like their rights to a jury trial, to confront witnesses,
and to testify), we hold prosecutors "to the most meticulous
standards of both promise and performance." See Fargas-Reyes, 125
F.4th at 270 (emphasis omitted) (quoting United States v. Lessard,
35 F.4th 37, 42 (1st Cir. 2022)). Which is why the law bans not
only the explicit reneging of promises but also the implicit "end-
runs around them." See United States v. Saxena, 229 F.3d 1, 6
(1st Cir. 2000) (quoting United States v. Voccola, 600 F. Supp.
3 A couple FWIWs: García doesn't attack the substantive reasonableness of his sentence. See generally United States v. Ponzo, 171 F.4th 507, 512 n.3 (1st Cir. 2026) (observing that a substantive-reasonableness challenge "focuses on the sentence's length" (emphasis omitted)). And he doesn't appeal the judge's order revoking his supervised release and imposing a consecutive 15-month revocation prison sentence.
- 3 - 1534, 1537 (D.R.I. 1985)); see also United States v. Mojica-Ramos,
103 F.4th 844, 850 (1st Cir. 2024).
Yet the law also restricts "what . . . defendant[s]
reasonably may expect." Saxena, 229 F.3d at 6. We'll give you
some for-instances. Unless bound to do so under the agreement's
specific terms, prosecutors needn't support a promised
recommendation "enthusias[tically]." United States v. Meléndez-
Rivera, 139 F.4th 83, 90 (1st Cir. 2025) (quoting United States v.
Cortés-López, 101 F.4th 120, 128 (1st Cir. 2024)). And "if the
agreement lets them request a sentence within a range that's
'stiffer' than the defense's request, they must tell the judge
'why [their] higher sentence' is better." Fargas-Reyes, 125 F.4th
at 270 (emphasis added) (quoting Lessard, 35 F.4th at 43) (brackets
in original). In other words, they still must pass "relevant
information" to the judge despite having "a corollary obligation
to honor" plea-deal pledges. Saxena, 229 F.3d at 6; see also
United States v. Frazier, 340 F.3d 5, 13 (1st Cir. 2003) (stating
that "[t]he government is under a constant obligation to ensure
the integrity of the proceedings at all levels, notwithstanding
the terms of any plea agreement"). Plus they're "under no
compulsion to sugar-coat the facts" when performing "these
duties." United States v. Colón-Rosario, 921 F.3d 306, 312 (1st
Cir. 2019). See generally Lessard, 35 F.4th at 42 (adding that we
- 4 - consider all the circumstances to see if prosecutors acted
impermissibly).
García candidly (and correctly) concedes that because he
didn't raise the plea-breach issue with the judge, he must show
plain error to win. That's easier said than done because he must
prove not only an error, but an error that's obvious (meaning it's
undeniable under governing law), affects his substantial rights,
and seriously implicates the fairness of the sentencing process.
See, e.g., United States v. Galíndez, 999 F.3d 60, 64-65 (1st Cir.
2021). See generally Puckett v. United States, 556 U.S. 129, 135
(2009) (holding that a claim of error "subject to reasonable
dispute" doesn't satisfy the obviousness requirement); United
States v. Delgado-Sánchez, 849 F.3d 1, 13 (1st Cir. 2017)
(expressing that we gauge an error's obviousness from the
perspective of the time of appellate consideration, not from the
perspective of the time of sentencing).
Arguments and Analysis
García spends a lot of time explaining how he's
(supposedly) cleared plain error's error and obviousness hurdles.
The gist of his theory is that the government (allegedly) talked
out of both sides of its mouth, requesting a 33-month within-
guidelines term (as permitted by the agreement) while using "wink-
- 5 - and-nod advocacy" to get "an upward variance."4 More specifically,
he faults the government for "cit[ing] case law" in its sentencing
memo that "support[s] above-guideline[s]" prison stints for
"firearm" crimes, "fram[ing] [his] non-violent offense against the
backdrop of an unusually murderous Puerto Rico society," painting
him "— a non-violent offender — as a potential threat to that
community," and "highlight[ing]" that his "within-guideline[s]
sentence" for the prior gun crime didn't "sufficiently 'deter' his
[illegal] possessory acts in this case."5 That "hollow
performance," the argument goes on, communicated "that a harsher
sentence wasn't just an option — it was necessary."
Though passionately made, García's theories don't
persuade — as anyone who reads on will see (our reasoning below
largely tracks the government's, FYI).
"Context" always "matters," of course. See Lessard, 35
F.4th at 43 (citing Saxena, 229 F.3d at 7-8, and United States v.
Canada, 960 F.2d 263, 269-70 (1st Cir. 1992)); see also United
States v. Muñoz-Gonzalez, 145 F.4th 21, 26 (1st Cir. 2025). And
A "variance" is a sentence outside the guidelines range 4
based on the weighing of statutory factors — seriousness of the offense, need for deterrence, achieving fair punishment, and the like. See, e.g., United States v. Miranda-Díaz, 942 F.3d 33, 40 (1st Cir. 2019) (discussing 18 U.S.C. § 3553(a)). He calls the government's sentencing document "the primary 5
delivery vehicle for its sentencing-advocacy payload."
- 6 - context cuts against key aspects of García's theory, as the
following examples illustrate.
a
García's sentencing memo argued (as the plea agreement
permitted) for a low-end within-guidelines sentence (27 months)
based on his difficult upbringing. And the government's sentencing
missive argued (as the agreement also allowed) for a high-end
within-guidelines term (33 months) based on many § 3553(a)
factors — including deterrence, public safety, and just
punishment — tied to (i) his crime when "viewed through" the lens
of Puerto Rico's "firearms and violence" problem and (ii) his not
staying on the right side of the law after his "prior federal
weapons conviction" by once again illegally possessing a
machinegun.6 The government did all that without belittling his
mitigating circumstances.
That reality is significant for a couple of reasons.
For openers, our cases say that "where a plea agreement entitle[s]
6 The maxim "what's good for the goose is good for the gander" springs to mind. See generally Ireland v. Digitraidix, LLC, No. 24-23069, 2025 WL 2719998, at *9 n.8 (S.D. Fla. July 18, 2005) (explaining that the goose-gander principle means that what applies to one should apply to both). García, however, rejects any "effort to equate" his bid for a low-end within-guidelines sentence with the government's push for a high-end within- guidelines term because of the prosecutor's (so-called) "coded invitations" for a higher sentence (emphasis added). Unfortunately for him, his coded-invitations claim flunks plain- error review — as the rest of this opinion confirms.
- 7 - the prosecutor to argue for the high end of a guideline[s] range
while the defendant argue[s] for the low end of that range, the
prosecutor '[is] within fair territory in emphasizing facts that
made a sentence at the low end of that [range] inappropriate.'"
United States v. Montañez-Quiñones, 911 F.3d 59, 65 (1st Cir. 2018)
(quoting United States v. Almonte-Nuñez, 771 F.3d 84, 91 (1st Cir.
2014)) (first four bracket sets added); see also Muñoz-Gonzalez,
145 F.4th at 27. Additionally, our cases also say that
"[c]ommunity-based" concerns (like crime-trend lines) "are
inextricably intertwined with deterrence." United States v.
Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013) (emphasis added);
see also id. at 23, 24 (doubling down on the principle that "the
incidence of particular crimes in the relevant community
appropriately informs and contextualizes the relevant need for
deterrence" but noting that a "judge's resort to community-based
characteristics does not relieve him or her of the obligation to
ground sentencing determinations in case-specific factors"
(emphasis added)).
Now it's true (as García argues) that the government's
sentencing memo cited caselaw affirming above-guidelines
sentences.7 But despite what García seemingly implies, the memo
7Garcia focuses most particularly on the government's citing United States v. Viloria-Sepúlveda, 921 F.3d 5, 10 (1st Cir. 2019), United States v. Narváez-Soto, 773 F.3d 282, 286 (1st Cir. 2014), and Flores-Machicote, 706 F.3d at 23.
- 8 - didn't seek an upwardly variant term. And the memo didn't
mention — let alone highlight — the cases' upwardly variant
sentencing results in going over "deterrence." More, the memo
also indicated that García still deserved a within-guidelines
sentence even after accounting for community factors. Even more,
García's sentencing memo cited caselaw affirming a below-
guidelines sentence (evidently neglecting the goose/gander proverb
explained in footnote 6).8
All of this is necessary to contextualize a full picture.
b
Again recall how García blasts the government for
(apparently) "highlight[ing]" that his earlier "within-
guideline[s] sentence" for illegal machinegun possession didn't
"'deter'" him from illegally possessing a machinegun "in this case"
(emphasis added). We must say that the italicized phrase appears
nowhere on the cited-to page of the government's memo. What the
government wrote is that García's "prior federal weapons
conviction" didn't act "as a deterrent" against his doing the same
kind of crime again. The government didn't argue that a within-
guidelines sentence wouldn't suffice.
8 He relied on United States v. Martin, 520 F.3d 87 (1st Cir. 2008), a case upholding the judge's decision that the relevant § 3553(a) factors called for a serious "downward" variance from the guidelines sentencing range. See id. at 89-90, 98 (emphasis added).
- 9 - And know this too. As part of his plea deal in the
earlier case, García and the government agreed to jointly request
a low-end within-guidelines sentence. See United States v. García-
Toro, No. 19-cr-394 (D.P.R. Sep. 4, 2019), ECF No. 25 at 4 (plea
agreement showing that the parties obligated themselves to
recommending a low-end within-guidelines sentence using a category
I criminal history). And it's no stretch to say that that sentence
didn't deter him from further criminal conduct.
Given this wider perspective, we see nothing devious
about the government's first-conviction-didn't-deter point — a
point made in requesting a high-end within-guidelines term (a
request permitted by the plea agreement), calculated to parry
García's low-end within-guidelines bid. See United States v.
Ubiles-Rosario, 867 F.3d 277, 288-89 (1st Cir. 2017) (concluding
that "there was nothing sinister about the government's decision
to highlight certain facts and factors in its sentencing memo[]"
when "the government's reference[s]" were "firmly grounded in its
recommendation").
With the proper context set, García's appeal is ready
for decision.
"The simplest way" to deal with an issue "is often the
best" way, we've said time and time again. See Stor/Gard, Inc. v.
Strathmore Ins. Co., 717 F.3d 242, 248 (1st Cir. 2013) (citation
- 10 - modified); see also, e.g., United States v. Cruz-Ramos, 987 F.3d
27, 39 (1st Cir. 2021). And fortunately there's a simple way here.
So we can be (relatively) quick.
Plain-error findings occur only "sparingly." United
States v. Young, 470 U.S. 1, 15 (1985). And that's no less true
in cases like ours. "Not all [plea] breaches will be clear or
obvious," the Supreme Court teaches. Puckett, 556 U.S. at 143.
"Which is why plain error's second prong — requiring the
complaining party to flag an undeniable mistake — often has
'"bite" in plea-agreement cases.'" Fargas-Reyes, 125 F.4th at 271
(quoting Puckett, 556 U.S. at 143).
Just so here. As we reveal in the remaining pages, any
error on García's prosecutor's part — if error there was (an issue
we don't decide) — wasn't clear or obvious under current
controlling law. See generally United States v. Miranda-Martinez,
790 F.3d 270, 272 (1st Cir. 2015) (commenting that
"[w]hile . . . plain error review applies 'in the usual fashion'
to forfeited arguments that the government breached a plea
agreement," we know "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'" (first quoting
Puckett, 556 U.S. at 134, and then quoting Santobello v. New York,
404 U.S. 257, 263 (1971))).
- 11 - a
Agreeing (or at least not disputing) that "'context' is
relevant[,]" that "'deterrence' is [an] okay" consideration, and
that "the word 'upward'" variance never "explicitly" rolled off
the prosecutor's tongue, García claims that fixating on these
"truisms" obfuscates the "core" problem (at least according to
him): "[w]here the agreement's within-guideline[s] recommendation
reflects a mine-run case," the government "offers no genuine
justification for framing Puerto Rico as exceptionally violent and
musters no explanation for how [he] or this gun-possession crime,
connect to the themes it drew most attention to." And trying to
add a patina of plausibility to his claim, he cites cases saying
that "[u]nmoored from any" offender- or offense-specific
considerations, community concerns "cannot serve as building
blocks for an upward variance." See United States v. Rivera-
Berríos, 968 F.3d 130, 137 (1st Cir. 2020); see also Flores-
Machicote, 706 F.3d at 24 (ruling that judges can consider
deterrence-related factors to support an upward variance if they
don't "focus too much on the community and too little on the
individual" defendants).
But García's efforts hit a snag. And that is that
despite having the burden of proving plain error, see Greer v.
United States, 593 U.S. 503, 508 (2021), he spotlights no "binding
on-point" authority holding that prosecutors breach plea deals by
- 12 - focusing as much on community concerns as his prosecutor did in
explaining where within the guidelines range a sentence should
fall, see United States v. Langston, 110 F.4th 408, 419 (1st Cir.),
cert. denied, 145 S. Ct. 581 (2024); see also United States v.
Jones, 748 F.3d 64, 70, 73 (1st Cir. 2014) (affirming that a plain
error must be "indisputable," adding also that a "no-plain-error
holding" isn't a "'ruling on the merits'" and so doesn't "whisper[]
even the faintest hint of how we might someday rule" on a preserved
challenge (quoting United States v. Caraballo-Rodriguez, 480 F.3d
62, 70 (1st Cir. 2007))).9
García says that his case is like Mojica-Ramos. The
prosecutor there definitely only paid "lip service" to his duty to
request a within-guidelines sentence. See 103 F.4th at 850
(quoting Almonte-Nuñez, 771 F.3d at 89). Quite problematically,
he flashed "250 photos" of guns and drugs plus "an unanalyzed
video" of a person "'resembling'" defendant as "'additional'"
uncorroborated "'evidence' of [defendant's] 'likely' participation
in 'other criminal behavior beyond the machinegun count charged.'"
See id. And calling the charged offense "'exceptional,'" id., he
also claimed that defendant's "conduct" constituted "'a big part
9 It goes without saying (but we say it anyway) that developing a sustained argument out of . . . legal precedents" is a party's "job," not ours. See Town of Norwood v. FERC, 202 F.3d 392, 405 (1st Cir. 2000).
- 13 - of the'" violent-crime "'problem'" on the island, see id. at 851.
Which triggered our prosecutorial-breach finding. See id. at 853.
But night-and-day differences separate García's
situation from Mojica-Ramos. García's prosecutor affirmatively
requested a within-guidelines sentence without labeling the crime
"exceptional" or discussing his "'likely'" involvement in other
crimes. And while he "generally discussed the prevalence of
firearm violence in Puerto Rico," the prosecutor only offered two
gun-related photos (not 250) and never suggested that García's
"conduct was itself violent or played a 'big part' in such
violence." See United States v. Aponte-Colón, 104 F.4th 402, 413
(1st Cir. 2024) (distinguishing Mojica-Ramos on similar grounds).
What's more, his memo's gun-violence breakdown reads like a cut-
and-paste of a colleague's memo in Aponte-Colón — where we found
no plea breach. See id. Compare United States v. García-Toro,
No. 19-cr-394 (D.P.R. Sep. 27, 2024), ECF No. 40 at 4-9, with
United States v. Aponte-Colón, No. 19-cr-394 (D.P.R. May 2, 2022),
ECF No. 42 at 5-11.
Still clinging to the idea that Mojica-Ramos helps with
the obvious-error showing, García also (and somewhat relatedly)
argues that language in the government's memo saying that
machineguns aren't self-defense weapons went too far by
"insinuat[ing] unproven, offensive intentions" — "veiled
- 14 - speculation [that] signaled that within-guideline[s] sentencing,
explicitly endorsed by the plea agreement, was insufficient." But
the Mojica-Ramos prosecutor "insist[ed] that the [judge] consider
unproven conduct," see 103 F.4th at 853 (emphasis added),
"offer[ing]" — as noted in our lettered sub-subsection
a — "'additional evidence' of [defendant's] 'likely' participation
in 'other criminal behavior beyond the machinegun count charged,'"
id. at 850 (emphases added). But that's hardly what the prosecutor
did here, meaning this aspect of García's argument isn't a needle-
mover either.
c
Again quoting the government's sentencing memo, García
elsewhere insists that "[t]he prosecution further urged the
[judge] to craft" a message-sending sentence to other "'people'"
showing "that they'd 'face serious consequences'" if they commit
"this possession-only" crime — "echoing the type of coded advocacy
that . . . constitutes breach" (to be absolutely clear, only the
text inside the internal quotation marks comes from the
government's dispatch). And he claims that our Canada case
supports his thesis. It doesn't.10
The Canada prosecutor "affirmatively" failed to
"recommend" an agreed-to "36 month" sentence "within a context
García also cites Mojica-Ramos. But we've already shown 10
that his circumstances fall outside that case's compass.
- 15 - suggesting that she had" a "greater" term "in mind." See 960 F.2d
at 270. Agreeing on the record that she was "stuck with the plea
agreement," she urged (in her own words) a "lengthy period of
incarceration" to deliver "a very strong message." See id. at
269. All this while adopting a "grudging and apologetic" tone
regarding the plea agreement. See id. Which sparked our
prosecutorial-breach holding. See id. at 271.
García's case and Canada are apples and oranges. While
the prosecutor here suggested that García deserved "very serious
consequences," he did so against the backdrop of affirmatively
requesting a high-end within-guidelines sentence (as opposed to
some other term on that range) twice in the memo and twice more at
the sentencing — a request perfectly in sync with the plea
agreement. And he didn't express any regret over "the plea
agreement's terms or otherwise suggest that [he] would seek a
different sentence if free to do so." See Aponte-Colón, 104 F.4th
at 410-11 (quoting United States v. Irizarry-Rosario, 903 F.3d
151, 154 (1st Cir. 2018), and distinguishing the situation before
it from Canada).
d
Continuing his efforts to (somehow) surmount plain
error's obviousness prong, García cites United States v. Gonczy,
357 F.3d 50 (1st Cir. 2004). But Gonczy isn't the difference-
maker he thinks it is. As promised in the plea agreement, the
- 16 - Gonczy prosecutor requested a low-end within-guidelines sentence.
Id. at 51. But after saying how the defendant had (among other
things) "ruined many lives," she stated that he "at a minimum
deserve[d] what the guidelines provide for and those are his just
deserts." Id. at 53-54. The trouble (as we saw it) was that
despite pledging to back a low-end within-guidelines sentence, the
prosecutor basically said that the full guidelines
range — spanning 17 months — constituted the least amount of time
that he should get. Nothing resembling that occurred here,
however, thus removing García's case from Gonczy's reach. See
generally Fargas-Reyes, 125 F.4th at 272 n.9 (distinguishing
Gonczy for similar reasons).
Upshot
All that's left to say is that we affirm García's
sentence and judgment.
- 17 -