No. 21-1443

UNITED STATES OF AMERICA,

Appellee,

v.

STEVEN LESSARD, a/k/a Shawn,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Kayatta, Circuit Judges.

Mark W. Shea and Shea & LaRocque, LLP on brief for appellant. John J. Farley, United States Attorney, and Seth R. Aframe, Assistant United States Attorney, on brief for appellee.

May 23, 2022 SELYA, Circuit Judge. Defendant-appellant Steven Lessard challenges his 150-month prison sentence and seeks resentencing on the ground that the government breached his plea agreement (the Agreement). Specifically, he asserts that the government broke its promise to recommend a sentence at the low end of the applicable guideline range by asking the sentencing court to impose a "big sentence." Relatedly, he argues that this alleged breach defeats a waiver-of-appeal provision in the Agreement that seemingly blocks his path.

Whether the government's breach of a plea agreement voids a waiver-of-appeal provision within a plea agreement is a question of novel impression in this circuit. But we need not answer that novel question today: even if we assume, favorably to the defendant, that the waiver-of-appeal provision is inoperative in his case, the defendant's claim of breach fails. Consequently, we affirm the judgment below. I. BACKGROUND

We briefly rehearse the relevant facts and travel of the case. When — as in this case — a sentencing appeal follows a guilty plea, "[w]e draw the facts from the plea agreement, the change-of-plea colloquy, the presentence investigation report (PSI Report), and the transcript of the disposition hearing." United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014).

- 2 - In March of 2017, Drug Enforcement Administration (DEA) agents identified a drug-trafficking organization that distributed fentanyl throughout the Merrimack Valley region (a part of which lies in New Hampshire and a part of which lies in Massachusetts). During the subsequent investigation, DEA agents conducted surveillance and (pursuant to a warrant) intercepted telephone calls. These intercepted calls included calls during the period from January 29 to March 14, 2018 between the defendant and Sergio Martinez (the leader of the drug-trafficking organization). The agents listened to calls in which Martinez and the defendant arranged deliveries of fentanyl to the defendant's apartment in Lawrence, Massachusetts.

On March 14, local police officers executed a search warrant for the defendant's apartment. Once inside, they found (among other things) more than 50 grams of fentanyl and over $2,000 in cash. In the basement of the building, the searchers recovered more than 2,000 grams of fentanyl and several firearms.

The following week, a federal grand jury sitting in the District of New Hampshire returned an indictment that charged the defendant (and others) with conspiracy to distribute and to possess with intent to distribute controlled substances. See 21 U.S.C. §§ 841, 846. Although three superseding indictments eventuated, the charge against the defendant remained constant. The defendant

- 3 - initially maintained his innocence but — on the eve of trial — he reversed course and entered into the Agreement with the government.

Under the terms of the Agreement, t