                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                          NOVEMBER 21, 2006
                              No. 06-10884                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 05-00004-CR-JTC-3

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                   versus

RICHARD G. HUTCHESON,

                                                      Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                            (November 21, 2006)

Before BARKETT, MARCUS and WILSON , Circuit Judges.

PER CURIAM:

     Richard G. Hutcheson appeals his 54-month sentence for mail fraud,
violation of 18 U.S.C. §§ 1341 and 1346. According to the terms of his plea

agreement, the government agreed to disclose, at sentencing, the extent of

Hutcheson’s cooperation and to recommend a sentence at the low end of the

guideline range. At the sentencing hearing, Hutcheson presented four character

witnesses testifying on his behalf, and he and his counsel testified as to

Hutcheson’s acceptance of responsibility and cooperation with authorities. The

government responded by making a low-end recommendation, expressly noting

that it was doing so pursuant to the plea agreement. Immediately following this

recommendation, however, the government proceeded to list aggravating factors

illustrating the seriousness of Hutcheson’s offense. The district court

acknowledged mitigation as a result of Hutcheson’s cooperation, but ultimately

concluded that the guideline range of 46 to 57 months was appropriate based on

the seriousness of the offense. Hutcheson did not object either to the sentence or to

the manner in which it was imposed.

      On appeal, Hutcheson argues that the government breached his plea

agreement and requests that we remand his case for re-sentencing. He argues that

the government improperly failed to make the extent of his cooperation known to

the district court, and contradicted its low-end sentence recommendation.

      A material promise by the government, which induces the defendant to plead



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guilty, binds the government to that promise. Santobello v. New York, 404 U.S.

257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). When a plea rests in any

significant portion on the government’s promise or agreement, so that it becomes

part of the inducement or consideration, such promise must be fulfilled. Id.

“Whether the government violated the agreement is judged according to the

defendant’s reasonable understanding of the agreement at the time he entered the

plea.” United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). For the

government expressly to agree to recommend a position and then advocate a

contrary position is a clear breach of a plea agreement. See United States v.

Taylor, 77 F.3d 368, 370-371 (11th Cir. 1996). In Taylor, the government

affirmatively advocated to the district court positions that contradicted its express

obligations under the plea agreements. Id. A recommendation by the government

that merely provides “lip service” to the plea agreement does not rectify the breach.

Id. at 371.

       Here, when asked what its position was as to Hutcheson’s sentence, the

government initially responded that “pursuant to the plea agreement [it] agreed to

recommend the low end of the. . .applicable guideline range,” and thus made that

recommendation. (R3 at 10). Immediately following this recommendation,

however, the government stated the following:



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             I do note, though, your honor, the factors of [18 U.S.C. §] 3553
             counsel a sentence I think within that guideline range [based on] the
             seriousness of the offense and nature and circumstances. This was a
             crime that went on for over ten years that involved over $2 million, it
             had a substantial impact upon the victim, the hospital here, also
             collateral impact to the extent of funds [the hospital] had to expend to
             unravel this web of deceit that Mr. Hutcheson carried out, and Mr.
             Hutcheson involved other people in that deceit as well, and the
             collateral impact on them.I think a sentence within the guideline range
             would promote respect for the law [and] would provide just
             punishment for the defendant in this case and would reflect his
             cooperation, and to the extent that he has already made some
             restitution for that.

(Id. at 10-11). The district court then stated that, “in view of the amount of the

loss, which was certainly considerable, the length of time which the fraud or

embezzlement went on, and the fact that it was a community hospital,. . .it [was]

certainly a serious offense.” (Id. at 11). The district court acknowledged that

Hutcheson’s offense was “somewhat mitigated by [his] cooperation” and that he

was “entitled to acceptance of responsibility,” but nonetheless concluded that the

guideline range was “an appropriate range of punishment” based on “the

seriousness [of the offense], the amount of money involved, [and] the amount of

restitution still remaining due.” (Id. at 11-12) The district court ultimately

sentenced Hutcheson to 54 months’ imprisonment, and Hutcheson made no

objections to the PSI or to the application of the guidelines. (Id. at 13-14).

      The government advocated a position contrary to its obligation when it



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focused on aggravating factors that were inconsistent with a low-end sentence. See

Taylor, 77 F.3d at 370-71. Hutcheson reasonably could have expected that the

government would refrain from suggesting a harsher sentence. See Rewis, 969

F.2d at 988. The government does not dispute Hutcheson’s understanding, but

instead insists that it fulfilled its obligation to report the extent of Hutcheson’s

cooperation and recommend a sentence at the low end of the guidelines. Further,

although the government reserved the right to inform the court of all the facts and

circumstances of his case, and suggests that it made these statements simply as a

threshold matter, it appears from the record that the government’s comments were

not intended to provide information but rather to suggest a harsher sentence. See

Taylor, 77 F.3d at 370-71.

      The government was also bound by its promise to disclose the extent of

Hutcheson’s cooperation to the district court at the sentencing hearing. See

Santobello, 404 U.S. at 262, 92 S.Ct. at 499. Although the government contends

that its disclosure to the probation officer, for inclusion in the PSI, was sufficient,

the language of the plea agreement does not necessarily lead to that conclusion.

The agreement stated that the government would “make the extent of

[Hutcheson’s] cooperation known to the sentencing court.” (See R1-4 at 4).

Whether that language can be read to encompass the actions taken by the



                                            5
government is at best unclear and ambiguous, and thus, it appears that the

government may have breached the plea agreement on this point as well.

      However, irrespective of any breach, Hutcheson must still show plain error

in order for us to remand for resentencing, because he did not raise any such

objection to his sentence when it was imposed. As we have previously held, if “the

district court affords a defendant an opportunity to object after the imposition of

sentence, and he fails to do so, any objections to the sentence are barred absent

manifest injustice. [We] equate[] the manifest injustice inquiry with review for

plain error.” United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).

Under plain error review, there must be (1) an error, (2) that is plain, and (3) that

affects substantial rights. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th

Cir. 2005), cert. denied, 126 S.Ct. 1809 (2006). If these three prongs are met, we

may exercise our discretion to notice this error if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. at 1329 (citation

omitted).

      Hutcheson has not carried his burden under the third prong of the plain error

test. For an error to affect substantial rights, “in most cases it means that the error

must have been prejudicial: It must have affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778,



                                            6
123 L.Ed.2d 508 (1993); United States v. Rodriguez, 398 F.3d 1291, 1299, 1306

(11th Cir.) cert denied, 125 S. Ct. 2935 (2005). When addressing the prejudice

prong of plain error review in the context of a sentence imposed after the breach of

a plea agreement, we have found plain error where the breach resulted in a higher

sentencing range under the guidelines. United States v. Romano, 314 F.3d 1279,

1281-82 (11th Cir. 2002). Conversely, we have refused to remand for resentencing

where there was no effect on a defendant’s sentence. United States v. Forney, 9

F.3d 1492, 1503-04 (11th Cir. 1993).

      Hutcheson did not receive a sentence within a higher range, see Romano,

314 F.3d at 1281-82, and arguably a remand would not effect his sentence based on

the district court’s findings, see Forney, 9 F.3d at 1503-04. The district court in

fact expressly acknowledged Hutcheson’s cooperation, noting that his offense was

“somewhat mitigated.” (See R3 at 10-11). Furthermore, even though the

government may have inappropriately emphasized aggravating factors, in violation

of the agreement, all of the disclosed information was contained in the PSI and

thereby known to the district court. (See PSI ¶¶ 5-26). Thus, even if Hutcheson

has established a breach, he has not established that the government’s breach

affected his substantial rights because it was not likely to have affected the

outcome of his sentencing. See Olano, 507 U.S. at 734, 113 S.Ct. at 1778.



                                           7
Accordingly, Hutcheson cannot meet the third prong of the plain error test, and we

must affirm his sentence.

      AFFIRMED.




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