United States Court of Appeals
                       For the First Circuit


No. 09-2655

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                      HENRY FERNÁNDEZ-CABRERA,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                               Before

              Boudin, Selya and Howard, Circuit Judges.



     Stephen Neyman on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and Luke Cass, Assistant
United States Attorney, on brief for appellee.




                          November 5, 2010
               SELYA,     Circuit     Judge.     Defendant-appellant     Henry

Fernández-Cabrera pleaded guilty to one count of illegal reentry

into     the     United     States.       Eschewing    the    parties'   joint

recommendation for a sentence at the bottom of the guideline

sentencing range (GSR), the district court sentenced the defendant

to 33 months in prison.             The defendant now mounts a challenge to

both the district court's failure to provide advance notice of its

intention not to adopt the joint sentencing recommendation and the

adequacy of the court's explanation for its choice of sentence.

Discerning no error, we affirm.

               In considering a sentencing appeal that trails in the

wake of a guilty plea, we glean the relevant facts from the plea

agreement,        the     change-of-plea       colloquy,     the   presentence

investigation report (PSI Report), and the transcript of the

disposition hearing.         See United States v. Nguyen, 

, 73

(1st Cir. 2010); United States v. Dietz, 

, 51 (1st Cir.

1991).

               This case first took shape in June of 2009, when police

officers in San Juan detained the defendant after he failed to

furnish identification following an investigation of a traffic

accident and his admission that he was in the United States

illegally.      The officers promptly notified federal Immigration and

Customs Enforcement (ICE) agents and ceded jurisdiction to that

agency.


                                         -2-
           ICE's   investigation     revealed     that   this    was   not   the

defendant's first illegal foray into the United States.                In 2000,

he had entered the United States illegally and stayed until his

arrest two years later on drug and weapons charges.              See 21 U.S.C.

§§ 812, 841; 18 U.S.C. § 922.              In the course of the ensuing

criminal proceedings, the defendant admitted to three prior illegal

entries into the United States. Each time, he had been apprehended

but allowed to depart voluntarily to the Dominican Republic (his

homeland).

           The government ultimately secured a conviction on the

drug and weapons charges in the United States District Court for

the Southern District of New York.          The court imposed a 21-month

prison sentence.       The defendant served his time and an immigration

judge ordered his removal to the Dominican Republic. In connection

with his deportation he received an I-294 Form, which explained

that his return to the United States was forbidden without the

approval of the Attorney General and that criminal penalties would

result should he violate that prohibition.

           In   defiance     of   this   edict,   the    defendant     returned

illegally to the United States in October of 2007.              He remained in

this country until his 2009 arrest.          At that time, the government

charged   him   with    illegal   reentry   after   having      been   deported

following his conviction for an aggravated felony.               See 8 U.S.C.

§§ 1326(a), (b)(2).


                                     -3-
                  The defendant waived indictment, thus qualifying for

participation           in    a    "fast-track"       plea   agreement    program.1      He

entered into a plea agreement (the Agreement) with the government

and pleaded guilty to a one-count information.

                  The   Agreement       placed    the    defendant's      GSR   at    30-37

months.2      It acknowledged that the parties would jointly recommend

to the district court "a sentence of imprisonment equal to the

lower       end    of   the       applicable    guideline."       The    Agreement    also

contained a waiver-of-appeal provision, which stated that if the

district court was to "accept[] the plea agreement and sentence[]

the     defendant        according        to     the    sentencing       recommendations

contemplated [in the Agreement]," the defendant would be deemed to

have surrendered any right to appeal.

                  At the disposition hearing, the district court abjured

the proposed sentence, instead imposing a sentence near the mid-

point of the GSR: 33 months.                   The court explained:

                  Defendant has a prior federal criminal
                  conviction for trafficking of firearms and
                  possessing with intent to distribute cocaine
                  . . . . He has admitted to four prior illegal
                  entries into the United States, the present
                  offense being his fifth illegal entry.



        1
       This early disposition program, adopted in Puerto Rico
pursuant to USSG §5K3.1, allows a defendant the benefit of a three-
level downward reduction in his offense level in exchange for his
waiver of indictment and admission of guilt.
        2
       This placement was confirmed by the district court and is
not challenged on appeal.

                                                -4-
                   In order to reflect the seriousness of
            the offense, to promote respect for the law,
            and particularly to deter similar conduct by
            this Defendant in the future, the Court finds
            that a sentence at mid applicable guideline
            range is sufficient but not greater than
            necessary   to    address   these   statutory
            sentencing factors.

The defendant made no contemporaneous objection to this statement

(or, for that matter, to any finding made in connection with

sentencing).

            Following the entry of judgment, the defendant served a

timely notice of appeal. In his appeal, he challenges his sentence

on the ground that the district court failed to provide either (i)

advance   notice   of   its    intention     to   deviate   from   the   jointly

recommended    sentence   or    (ii)   an    adequate   explanation      of   its

decision.     The government counters that the defendant has waived

any right to appeal and that, in all events, the defendant's claims

lack force.    Because the government's waiver-of-appeal argument is

logically antecedent to the defendant's plaints, we start there.

            The government's waiver argument need not detain us.               A

criminal defendant who waives his right to appeal relinquishes a

substantial right.      Consequently, a waiver-of-appeal provision in

a plea agreement should be construed according to its tenor, and

any ambiguities should be resolved in favor of allowing the appeal

to proceed.     See United States v. Acosta-Roman, 

, 3-4

(1st Cir. 2008); United States v. McCoy, 

, 77 (1st Cir.

2007); United States v. Teeter, 

, 23-25 (1st Cir. 2001).

                                       -5-
             In the case at hand, the language of the waiver-of-appeal

provision is pellucid: the waiver does not attach unless the

district court has "sentence[d] the defendant according to the

sentencing recommendations contemplated [in the Agreement]."               The

Agreement contains only a single sentencing recommendation: a joint

entreaty that the district court sentence the defendant to a term

of    imprisonment   "equal    to   the    lower   end   of   the   applicable

guidelines."      But, here, the GSR encompasses a span of 30-37

months, yet the district court sentenced the defendant to a 33-

month term of immurement. That mid-range sentence was not the low-

end sentence "contemplated" in the Agreement.

             That ends this aspect of the matter.        A waiver-of-appeal

provision is enforceable according to its terms. 

.    The government, however, is not entitled to recast the

reach of such a provision after the fact.          When the district court

chose not to follow the parties' joint sentencing recommendation,

the waiver-of-appeal provision, as framed, was relegated to the

scrap heap.     Consequently, the appeal may proceed.

             We turn next to the defendant's claims.           We begin with

the standard of review.       The Supreme Court has directed the courts

of appeals to review an appealed sentence for reasonableness.              See

Gall v. United States, 

, 46 (2007).           This assessment is

to be made pursuant to a deferential abuse-of-discretion standard.

pertains where, as here, the sentencing court


                                     -6-
has    imposed   a   within-the-range    sentence.    United   States   v.

Carrasco-De-Jesús, 

, 26 (1st Cir. 2009); United States

v. Jiménez-Beltre, 

, 517 (1st Cir. 2007) (en banc);

United States v. Deppe, 

, 62 (1st Cir. 2007).

            In this context, reasonableness has both substantive and

procedural dimensions.        The defendant does not challenge the

substantive reasonableness of his sentence but, rather, advances

two claims of procedural unreasonableness.

            The first of these claims is premised on the Supreme

Court's decision in Burns v. United States, 

(1991).

There, the Court held that a defendant must be afforded reasonable

notice before a sentencing court may depart upward from the GSR on

grounds not specifically flagged in either the PSI Report or some

other submission that antedates the disposition hearing.3         

            The defendant's emphasis on Burns is doubly flawed.         For

one thing, this emphasis ignores the shifting of the tectonic

plates caused by the Court's subsequent decision in United States

v. Booker, 

(2005).         For another thing, honoring this

claim would involve an unwarranted expansion of Burns.         We explain

each of these flaws briefly.




       3
       Since 2002, this holding has been codified in Federal Rule
of Criminal Procedure 32(h). See Irizarry v. United States, 

, 709-10 (2008).

                                   -7-
            We begin this explanation with a comment on the effect of

Booker.     The Burns Court perceived a "special need for notice,"

Irizarry v. United States, 

, 713-14 (2008), at a point

in time when the federal sentencing guidelines were viewed as

mandatory.    The Court's later decision in 

,

264-65, undermined that premise.       Booker rendered the guidelines

advisory.    See 

important because, under a mandatory

guideline regime, the parties could reasonably anticipate judicial

adherence to the guidelines and, thus, a sentence within the GSR.

See 

.   Thus, when a sentencing court opted

to depart upward without advance notice, a defendant might well be

caught unawares.    See 

.

            Booker changes that dynamic.    As previously noted, the

holding in Booker made the guidelines advisory.       That, in turn,

made deviations from the guidelines more readily foreseeable and,

thus, made sentences within the GSR less a matter of routine.     See

United States v. Vega-Santiago, 

, 4 (1st Cir. 2008)

(noting that, post-Booker, the sentencing inquiry "is far more

broad, open-ended, and discretionary").     That altered the calculus

of reasonable expectations.

            Recognizing the salience of this shift, the Supreme

Court, in the post-Booker era, has refused to expand the notice

requirement announced in Burns beyond the narrow confines of a

sentencing departure.    See 

-15.    In that


                                 -8-
regard, the Court has interpreted Booker as defenestrating any

argument for an expansion of the Burns principle.     See 

We have echoed this reasoning. See 

.

As matters now stand, the notice contemplated by Burns is necessary

only when a sentencing court purposes to depart based on previously

unannounced considerations. See Fed. R. Crim. P. 32(h). This case

does not fit within that taxonomy.

          Booker aside, a Burns-like prophylactic is unnecessary in

this case.    Here, the court imposed a sentence within the GSR — a

GSR agreed to by the parties and limned in the PSI Report.        The

parties' default expectation should have been that the court would

impose a within-the-range sentence, so there was no special need

for notice.   See United States v. Jackson, 

, 1106 (7th

Cir. 1994) ("We understand and agree that the district court is not

required to give notice of its decision to sentence within the

applicable Guideline range on grounds identified in the presentence

report. . . ."); United States v. Willis, 

, 416-17 (8th

Cir. 1993) (similar).   Moving a sentence up a notch but remaining

within the GSR is fundamentally different from departing upwardly

sua sponte to a point above the top of the GSR.

          In an effort to sabotage this reasoning, the defendant

argues that because the Agreement contemplated a specific sentence

he had a right to expect, absent notice to the contrary, that the

court would impose that sentence.      Its failure to do so, he says,


                                 -9-
constituted unfair surprise.     This is not a legitimate basis for a

claim of prejudicial surprise.        See 

.

After all,

           [i]n the normal case a competent lawyer . . .
           will anticipate most of what might occur at
           the sentencing hearing . . . . Garden variety
           considerations   of    culpability,   criminal
           history, likelihood of re-offense, seriousness
           of the crime, nature of the conduct and so
           forth should not generally come as a surprise
           to trial lawyers who have prepared for
           sentencing.

(quoting 

); see also United

States v. Politano, 

, 75 (1st Cir. 2008).

           We add a coda.    Mechanical rules about when warnings are

or are not required do not control in every case.          One would expect

a sentencing court to be sensitive to a timely objection based on

surprise and a claim that further information needs to be gathered.

But this assumes real surprise — unlikely in this case since

recommendations are not always followed.           It also assumes an on-

the-spot   request   for   further    time   and   a   fairly   specific   and

plausible explanation of what is expected to be gained — and no

such request or explanation was made here.             A defendant scarcely

can complain about the lack of a warning when there is no reason to

believe that a warning, if given, would have made the slightest

difference.

           The defendant's remaining claim of sentencing error takes

the form of a challenge to the adequacy of the court's explanation


                                     -10-
for the mid-range sentence.       This, too, is a claim of procedural

unreasonableness, which engenders abuse-of-discretion review. See,

e.g., 

.

            It cannot be gainsaid that a sentencing court must

indicate the basis for the sentence imposed.              United States v.

Turbides-Leonardo, 

, 40 (1st Cir. 2006) (citing 18

U.S.C. § 3553(c)).     Withal, pronouncing sentence does not require

a district court to be precise to the point of pedantry.                 The

requirement for explication is less rigid than the defendant

suggests:

            While the court ordinarily should identify the
            main factors upon which it relies, its
            statement need not be lengthy . . . nor need
            it dissect every factor made relevant by 18
            U.S.C. § 3553 . . . .     Even silence is not
            necessarily fatal; "a court's reasoning can
            often be inferred by comparing what was argued
            by the parties or contained in the presentence
            report with what the judge did."

(quoting 

); see also

United States v. Arango, 

, 46 (1st Cir. 2007).               The

level of detail required varies depending on the circumstances.

Thus, "sentences that fall inside a properly calculated guideline

sentencing range require a lesser degree of explanation than those

that fall outside."      

(citing

United States v. Smith, 

, 4 (1st Cir. 2006)).

            Viewed   against   this    backdrop,   the   defendant's   claim

disintegrates.   The district court observed that the defendant had


                                      -11-
entered the United States illegally on five separate occasions and

concluded that a mid-range sentence was appropriate to promote

respect for the law and to prevent recidivism.                That was a

sufficient explanation to undergird the court's choice of a 33-

month sentence.

          The defendant advances two counter-arguments.            The first

posits that it was impermissible for the court to find facts (such

as the number of illegal entries) based on the PSI Report.              This

argument is jejune.      The defendant interposed no objection to the

chronicling of these events, and it is settled beyond hope of

contradiction     that    unobjected-to     "[f]acts     contained     in   a

presentence report ordinarily are considered reliable evidence for

sentencing purposes." United States v. Morillo, 

, 872-73

(1st Cir. 1993); accord United States v. Cintrón-Echautegui, 

, 6 (1st Cir. 2010).       That principle applies here.

          The defendant's second counter-argument posits that the

court's explanation of the sentence was insufficient to meet the

demands of 18 U.S.C. § 3553(c).         We do not agree.

          Where the record permits a reviewing court to identify

both a discrete aspect of an offender's conduct and a connection

between that behavior and the aims of sentencing, the sentence is

sufficiently    explained   to   pass   muster   under   section     3553(c).

United States v. Mangual-Garcia, 

, 15 (1st Cir. 2007).

The explicit reference by the court below to the defendant's


                                   -12-
recurring    pattern   of   illegal   entries   corresponded   to   this

benchmark.

            We need go no further. For the reasons elucidated above,

we uphold the defendant's sentence.



Affirmed.




                                  -13-