                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                     FOR THE ELEVENTH CIRCUIT  U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                  FEBRUARY 15, 2008
                            No. 07-11317          THOMAS K. KAHN
                                                       CLERK
                       ________________________

                    D. C. Docket No. 06-00073-CR-KD

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                  versus

JEREMY LAWRENCE CARLISLE,

                                                   Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                            (February 15, 2008)

Before BLACK, CARNES and COX, Circuit Judges.

PER CURIAM:
       Raising two contentions, Jeremy Carlisle appeals the 135 month sentence he

received after he pleaded guilty to conspiracy to possess with intent to distribute

more than 500 grams of methamphetamine, in violation of 21 U.S.C. § 846.

                                            I.

       Carlisle’s first contention is that the Government violated the terms of his

plea bargain by not evaluating the assistance he had rendered up to the time of

sentencing and deciding whether to move at that time under U.S.S.G. § 5K1.1 for

a downward departure based on substantial assistance. This is not the identical

issue that Carlisle raised in the district court.

       At sentencing, when the district court asked the Government whether it was

going to make a motion, the AUSA replied that a Federal Rule of Criminal

Procedure 35 motion “is still in the works,” but that the Government was “not

prepared to make that motion at this time.” He explained that “this defendant’s

cooperation is still ongoing and an appropriate motion would be made at the

correct time, subsequent to this proceeding.” Carlisle cited to the district court

United States v. Alvarez, 115 F.3d 839 (11th Cir. 1997), which he characterized as

standing for the proposition that “there is a temporal distinction between 5(k)1

departures and Rule 35 departures,” “[a]nd to the extent that Mr. Carlisle has

cooperated to this point . . . it would be our objection that Mr. Carlisle is due

                                            2
cooperation departure at this time for what is — has happen [sic] up to now and a

Rule 35 for what has happened after.”

      The district court responded that it had “absolutely no jurisdiction, authority

or ability to make them file a 5(k) motion.” Carlisle conceded that was correct but

explained that he wanted to “preserve it for the record” because the decision in

Alvarez, as he interpreted it, meant that the court would not be able to grant a Rule

35 post-sentencing motion based on cooperation that had preceded sentencing.

The court disagreed, stating that any cooperation Carlisle had provided before

sentencing could be considered “overall in the 35.” While Carlisle “tend[ed] to

agree with that,” he wanted to preserve the point “in an abundance of caution,

[because] there are several Circuits that have followed that rule.”

      There is a dispute as to which standard of review we should apply in this

case. According to Carlisle, the appropriate standard is de novo. The

Government, on the other hand, contends we should review only for plain error,

since Carlisle did not specifically claim the Government breached the plea

agreement in district court. In the end, it does not matter which standard of review

we use, as the result is the same under both. There was no error, plain or

otherwise.




                                          3
      The plea agreement could not be clearer that the decision about whether

Carlisle had provided assistance that was substantial enough to persuade the

Government to file a § 5K1.1 or Rule 35 motion was reserved exclusively to the

Government. The agreement expressly states that whether Carlisle’s cooperation

had been “complete, truthful and substantial” and had resulted in “substantial

assistance to the United States in the investigation or prosecution of another

criminal offense,” is “a decision specifically reserved by the United States in the

exercise of its sole discretion.” And it reiterates that: “The United States

specifically reserves the right to make the decision relating to the extent of any

such departure request made under this agreement based upon its evaluation of the

nature and extent of the defendant’s cooperation.”

      Carlisle’s position in the district court and much of his position before us is

based on the erroneous premise that the cooperation he provided before sentencing

could not be considered in deciding whether and to what extent he had provided

substantial assistance for purposes of a post-sentence Rule 35 motion. That was

the state of the law when the Alvarez case was decided in 1997, but the law

changed when Rule 35 was amended in 1998. As amended, the rule explicitly

provides that “[i]n evaluating whether the defendant has provided substantial

assistance, the court may consider the defendant’s presentence assistance.” Fed.

                                          4
R. Crim. P. 35(b)(3). To the extent Carlisle is arguing, or other circuits have held,

that presentence assistance that is by itself substantial may not be considered in a

post-sentencing Rule 35 departure, that is simply wrong. Fed. R. Crim. P. 35

advisory committee’s note to 1998 amendment. (“Thus, the amendment permits

the court to consider, in determining the substantiality of post-sentencing

assistance, the defendant’s pre-sentencing assistance, irrespective of whether that

assistance, standing alone, was substantial.”).

      To the extent that Carlisle is arguing that the Government was obligated to

decide one way or the other at the time of sentencing whether his cooperation up

to that point had been substantial, there is no error. The plea agreement reserved

the substantial assistance motion to “the United States in the exercise of its sole

discretion,” and does not plainly require it to make that decision at sentencing,

instead of later. In fact, the plea agreement specifies that if the Government

decides Carlisle has rendered substantial assistance, it will move for a downward

departure either “in accordance with Section 5K1.1 of the United States

Sentencing Guidelines or Rule 35 of the Federal Rules of Criminal Procedure,

whichever the United States deems applicable.” (emphasis added).




                                          5
                                               II.

       The second contention Carlisle raises is that the district court erred in

denying him an acceptance of responsibility reduction in the calculation of his

advisory guidelines range. That issue is barred from review by the valid appeal

waiver that Carlisle agreed to as part of the plea bargain. It is also frivolous in

light of the fact that he violated the terms of his pretrial supervisory release by

using methamphetamine and by absconding; he had to be apprehended by law

enforcement. See United States v. Hromada, 49 F.3d 685, 691 (11th Cir. 1995).

       AFFIRMED.1




       1
         This case was initially scheduled for oral argument, but the panel unanimously elected to
decide it on the briefs and record. See 11th Cir. R. 34-3(f).

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