               Case: 14-13979       Date Filed: 02/03/2016      Page: 1 of 25


                                                                      [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                               _______________________
                                    No. 14-13979
                              ________________________


                     D.C. Docket No. 1:13-cr-00421-ODE-RGV-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

FREDRICK TODD ANDERSON,

                                                                      Defendant-Appellant.

                              ________________________

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

                                     (February 3, 2016)

Before HULL and JILL PRYOR, Circuit Judges, and CONWAY, * District Judge.

PER CURIAM:

       Fredrick Todd Anderson appeals his total sentence of 235 months’

imprisonment for one count of carjacking, one count of attempted robbery, and one

       *
          Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
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count of brandishing a firearm during a crime of violence. After careful review of

the record and briefs, and with the benefit of oral argument, we affirm.

                               I.      BACKGROUND

      A federal grand jury charged Anderson and two co-defendants with (1) one

count of conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a) (Count

One); (2) two counts of attempted robbery, in violation of 18 U.S.C. § 1951(a)

(Counts Two and Four); (3) one count of taking by force, violence, and

intimidation a car that had been transported in interstate commerce, in violation of

18 U.S.C. § 2119 (Count Three); and (4) one count of using and brandishing a

firearm in the course of an attempted robbery, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) (Count Five). Anderson pled guilty to Counts Three

(carjacking), Four (attempted robbery), and Five (using and brandishing a firearm)

pursuant to a 17-page written plea agreement.

A.    Offense Conduct

      We recount the facts from the government’s factual proffer at Anderson’s

plea hearing, as well as the presentence investigation report (“PSI”). In the early

morning of March 11, 2013, Anderson, David Starks, Deshawn Mackey, and two

juveniles decided to rob Duty Free America (“DFA”), a business that provided

duty free goods to shops in the Atlanta airport. DFA was next door to J&D

Trucking (“J&D”), a different business.

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      Anderson and his accomplices planned to rob DFA’s manager as he was

opening the store, so they drove Starks’ car to DFA at some time between 3:00

AM and 4:00 AM and waited for the manager to arrive. Soon thereafter, Paul

Moser, a 63-year-old J&D employee, arrived for work and pulled up next to

Starks’ car.

      Anderson and his accomplices spontaneously decided to rob Moser instead

of DFA. Anderson and his accomplices ran up to Moser, beat him, took his wallet,

cell phone, wedding ring, and car keys, and forced him into the backseat of Starks’

car. The juveniles drove away in Moser’s car.

      With Starks driving, Mackey in the front passenger’s seat, and Anderson in

the backseat with Moser, the attackers drove Moser to several automatic teller

machines (“ATMs”) in an effort to withdraw money from Moser’s bank account.

Initially, Anderson struck Moser because he was not providing the personal

identification number for his debit card quickly enough. As they drove between

ATMs, Anderson struck Moser several more times and threatened to kill him,

while Mackey pressed a gun to Moser’s forehead.

      The attackers ultimately were only able to withdraw $60 from Moser’s bank

account, which made them angry. The attackers asked Moser where he lived and

what kind of valuables he had at his home. When Moser told the attackers where




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he lived, the attackers determined that he lived too far away and stated that they

should just kill him.

      At some point, Moser told his attackers that there was $5,000 in a strongbox

at J&D and that he would give it to them in exchange for his freedom. The

attackers began driving back to J&D and allowed Moser to call a J&D coworker in

order to arrange for a quick exchange. Moser called his coworker and asked him

to bring the strongbox out to the parking lot. However, there was no strongbox

with $5,000 at J&D. Rather, Moser was trying to signal that he needed help. The

coworker recognized this and called 911. By the time the attackers approached

J&D, the police had arrived. The attackers spotted a police car at J&D, so they

turned around and drove away with Moser still in the car.

      Next, the attackers drove Moser to a residential subdivision, led him behind

a vacant house, and told him that they were going to kill him. Moser believed the

attackers were going to execute him. Despite their repeated death threats, the

attackers did not kill Moser. Rather, Anderson pistol whipped Moser in the face

and pushed him into a small pond. Moser remained motionless on the ground and

the attackers eventually left. Moser crawled back to the roadway and began

walking to find help.

      At approximately 6:00 AM, responding police officers located Moser.

Moser had significant injuries to his left eye, mouth, and nose, and was bleeding

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from his face. Medical professionals later determined that Moser suffered multiple

facial fractures that would require surgery to save the use of his left eye.

B.     Plea Agreement

       Paragraph eight of the written plea agreement addressed the “Base Offense

Level and Specific Offense Characteristics,” which are found in Chapter Two of

the Sentencing Guidelines. In paragraph eight, the parties agreed that these

specific offense characteristics applied as follows:

       8. The parties agree to recommend to the Court that the following
       Sentencing Guidelines Base Offense Level and Specific Offense
       Characteristics Apply to Counts Three and Four:

               a. The Base Offense Level is 20 under [U.S.S.G.] § 2B3.1(a);

               b. § 2B3.1(b)(3)(B) applies and imposes a 4-level increase for
                  Serious Bodily Injury; 1

               c. § 2B3.1(b)(4)(A) applies and imposes a 4-level increase for
                  abduction;

               d. § 2B3.1(b)(5) applies and imposes a 2-level increase for
                  carjacking;

               e. [§] 2B3.1(b)(7)(A) applies and imposes no increase because
                  the value of the vehicle was less than $10,000.

       Importantly, the plea agreement did not prohibit the government from

making other recommendations about the application of the Guidelines. Just the

opposite. The plea agreement unambiguously provided that the government

       1
        The potential increase for the degree of bodily injury was six levels. See U.S.S.G.
§ 2B3.1(b)(3)(C) (adding six levels for “Permanent or Life-Threatening Bodily Injury”).
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reserved the right to inform the court of all facts and circumstances regarding

Anderson and, most notably, to make recommendations regarding application of

the Guidelines “except as expressly stated elsewhere in [the] plea agreement”:

        Right to Answer Questions, Correct Misstatements, and Make
                            Recommendations

            15. The Government reserves the right to inform the Court and
      the Probation Office of all facts and circumstances regarding the
      Defendant and this case, and to respond to any questions from the
      Court and the Probation Office and to any misstatements of fact or
      law. Except as expressly stated elsewhere in this Plea Agreement,
      the Government also reserves the right to make recommendations
      regarding application of the Sentencing Guidelines.

(emphasis added). The government therefore reserved the right to recommend the

application of other Guidelines provisions as long as such a recommendation did

not violate the express terms of the plea agreement.

      The agreement also provided that the government was not bound by the

guidelines recommendations in the agreement if additional evidence sufficient to

support a different application of the Guidelines was discovered. Additionally,

pursuant to the agreement, the government agreed to recommend that Anderson be

sentenced at “the low end of [his] adjusted guideline range.”

      The plea agreement further provided that the court had discretion to depart

from the Guidelines and that no one could predict Anderson’s sentence:

             9. The Defendant understands that, before imposing sentence
      in this case, the Court will be required to consider, among other
      factors, the provisions of the United States Sentencing Guidelines and
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      that, under certain circumstances, the Court has the discretion to
      depart from those Guidelines. The Defendant further understands that
      the Court may impose a sentence up to and including the statutory
      maximum as set forth in this paragraph and that no one can predict his
      exact sentence at this time.

The agreement also made it clear that the court was not bound by any

recommendations or guidelines computations in the plea agreement.

      The plea agreement contained an appeal waiver stating, inter alia, that

Anderson waived his right to appeal his sentence and conviction unless he received

a sentence “greater than 16 years,” which is 192 months.

      Finally, the plea agreement also contained an integration clause, which

stated that there were “no other agreements, promises, representations, or

understandings between [Anderson] and the Government.” Anderson and his

counsel both signed the agreement.

C.    Change of Plea Hearing

      At Anderson’s change of plea hearing, the district court asked the parties for

an estimate of Anderson’s advisory guidelines range. In response, the government

estimated that the low end of Anderson’s guidelines range would be 184 months.

Anderson agreed with that estimate. The district court reminded the parties,

however, that it “[could not] know until the sentencing hearing what the Guidelines

[were] going to be.”




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      Anderson confirmed that the government promised him nothing outside of

the written plea agreement to get him to plead guilty.

D.    Sentencing Guidelines Calculations

      1.     Chapter Two, Part B, “Basic Economic Offenses,” Section Three,
             entitled “Robbery, Extortion, and Blackmail”

      With respect to Count Three (carjacking of Moser), the probation officer

assigned Anderson a base offense level of 20, pursuant to § 2B3.1(a). The

probation officer then applied these “specific offense characteristics”: a four-level

enhancement under § 2B3.1(b)(3)(B) because the victim sustained serious bodily

injury; a second four-level enhancement under § 2B3.1(b)(4)(A) because the

victim was abducted and taken to various ATM locations; and a two-level

enhancement under § 2B3.1(b)(5) because the offense involved carjacking. These

specific offense characteristics were expressly referenced in the plea agreement.

The probation officer also recommended a five-level enhancement under

§ 2B3.1(b)(2)(C) for brandishing a firearm, which was not expressly referenced in

the plea agreement. Thus, as to Count Three, Anderson’s total offense level was

35.

      With respect to Count Four (attempted robbery of J&D), the probation

officer assigned Anderson a base offense level of 20, pursuant to § 2B3.1(a). The

probation officer then applied these “specific offense characteristics”: a four-level

enhancement under § 2B3.1(b)(3)(B) because the victim sustained serious bodily
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injury, and a second four-level enhancement under § 2B3.1(b)(4)(A) because the

victim was abducted and taken to a vacant house. These specific offense

characteristics were expressly referenced in the plea agreement. Thus, as to Count

Four, Anderson’s total offense level was 28.

      2.     Chapter Three, Part D, entitled “Multiple Counts”

      The probation officer determined that Counts Three and Four were excluded

from grouping into a single group under U.S.S.G. § 3D1.2(d). Part D of Chapter

Three of the Guidelines is entitled “Multiple Counts” and contains the rules that

apply to multiple counts in the same indictment for which the defendant has been

convicted.

      According to the probation officer, Moser was the victim in Count Three,

while J&D was the victim in Count Four. The probation officer further noted that

the carjacking of Moser (Count Three) occurred first, and that the attempted

robbery of J&D (Count Four) occurred “[a]fter considerable time lapsed.” Thus,

the probation officer maintained that Counts Three and Four should not be grouped

because they were “separate incidents and involve[d] two separate victims.”

      To calculate the combined offense level for the separate counts, the

probation officer applied the rules contained in U.S.S.G. § 3D1.4. In doing so, the

probation officer used the total offense level of 35 from Count Three, which was

the greater total offense level between Counts Three and Four, and added one level

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pursuant to the table in § 3D1.4, yielding a combined offense level of 36. The

probation officer then applied a three-level reduction for acceptance of

responsibility, pursuant to § 3E1.1(a) and (b), yielding a total offense level of 33

for Counts Three and Four. For Count Five (brandishing a firearm), the probation

officer determined that, pursuant to U.S.S.G. § 2K2.4(b), Anderson’s guidelines

range was the seven-year mandatory minimum imposed by 18 U.S.C. §

924(c)(1)(A)(ii).

      3.     Chapter Four, Part B, entitled “Criminal History”

      Anderson had a criminal history category of IV because of (1) a prior theft-

by-receiving conviction where his offense conduct involved the theft of over 80

firearms from a firearms dealer; (2) a prior felony burglary conviction; and

(3) violations of probation and supervised release, including committing the instant

offenses while on probation.

      Based on his criminal history category of IV and total offense level of 33,

Anderson’s guidelines range was 188 to 235 months’ imprisonment as to Counts

Three and Four, plus 84 months’ imprisonment as to Count Five, to run

consecutively to the sentences for Counts Three and Four, resulting in a total

advisory guidelines range of 272 to 319 months’ imprisonment.




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E.    Sentencing Hearing

      At the sentencing hearing, Anderson argued that Counts Three and Four

should be grouped under the multi-count rules contained in U.S.S.G. § 3D1.2. In

response, the government asserted that the probation officer correctly declined to

group Counts Three and Four because in the attempted robbery encompassed by

Count Four, J&D was the direct victim while Moser was a subsidiary victim. The

district court ultimately sided with the government and overruled Anderson’s

objection that Counts Three and Four should be grouped under § 3D1.2.

      Anderson also argued that the government’s grouping position at sentencing

was inconsistent with, and therefore a breach of, the plea agreement. In light of the

alleged breach, Anderson asked the district court for specific performance of the

plea agreement. The district court disagreed with Anderson and concluded that the

government had not breached the plea agreement because the agreement did not

commit the government in any way to agree that Counts Three and Four should be

grouped together.

      Also at sentencing, Anderson objected to the probation officer’s

recommendation that the § 2B3.1(b)(2)(C) brandishing enhancement be applied to

Count Three. Following argument from Anderson, the district court asked if the

government had a response. In response, the government prosecutor stated that as

“an officer of the court,” she had to tell the court that the probation officer was

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correct, but her response did not amount to a recommendation of that

enhancement:

      The plea agreement provides that the parties agree that certain
      applications apply under the guideline range. It does not state that I
      . . . am prohibited from saying any other ones apply, but I think I will
      say that under the plea agreement I don’t know that I can say anything
      more other than, as an officer of the court, I think I have to tell you
      that I believe the probation officer is correct in her assessment. That
      doesn’t mean I am recommending it.

      At that point, Anderson objected to the government’s statement as a breach

of the plea agreement. The district court pointed out, “[i]t would be clearer if the

plea agreement said that the following specific offense characteristics apply and

none others, but I can see how you could argue that under the rule of lenity that the

defendant wins out on that one.” Accordingly, the district court sustained

Anderson’s objection to the brandishing enhancement.

      The probation officer then recalculated Anderson’s advisory guidelines

range to reflect the district court’s ruling, and stated that Anderson’s total offense

level was 29, his criminal history category was still IV, and his advisory guidelines

range for Counts Three and Four was 121 to 151 months’ imprisonment. The

court explained that, with the additional 84-month consecutive sentence mandated

by Count Five, Anderson’s advisory guidelines range was 205 to 235 months’

imprisonment. 2


      2
          If Counts Three and Four had been grouped pursuant to § 3D1.2, then Anderson’s
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       With the guidelines calculations sorted out, the district court solicited

arguments regarding the 18 U.S.C. § 3553(a) factors. 3 Anderson argued that his

criminal history category overstated the severity of his criminal history and that his

co-defendants had received comparatively lower sentences. Anderson asked the

court to consider all of that and impose a significantly below-guidelines sentence

of 144 months’ imprisonment or less.

       In response, the government argued that Anderson’s criminal history

category accurately reflected the severity of his past offenses. The government

also noted that Anderson engaged in a leadership role to execute a “horrific”

offense. While the government acknowledged that it was bound by the plea

agreement to recommend a sentence at the low end of Anderson’s applicable

guidelines range, it argued that Anderson “clearly [did] not deserve anything below

the low end of the guideline range.” Anderson did not object to the government’s

response as violating the plea agreement or otherwise.



advisory guidelines range would have been 100 to 125 months’ imprisonment, followed by 84
months’ imprisonment to run consecutively as to Count 5, yielding a total advisory guidelines
range of 184 to 209 months’ imprisonment.
       3
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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      After considering the § 3553(a) factors, the district court sentenced

Anderson to 151 months each as to Counts Three and Four to run concurrently to

one another, and 84 months as to Count Five to run consecutively to the other

sentences, yielding a total sentence of 235 months’ imprisonment. Following the

pronouncement of the sentence, Anderson objected to his total sentence as

unreasonable and renewed his previous objections.

                           II.    ISSUES ON APPEAL

      On appeal, Anderson argues that the government breached the plea

agreement in three instances at sentencing by: (1) agreeing with the probation

officer that the offenses in Count Three (carjacking of Moser’s car) and Count

Four (attempted robbery of J&D) should not be grouped together under U.S.S.G.

§ 3D1.2; (2) answering the district court’s question as to whether the probation

officer’s assessment of a five-level enhancement for brandishing a firearm under

U.S.S.G. § 2B3.1(b)(2)(C) was legally correct, but adding that its response did not

amount to a recommendation of that enhancement; and (3) discussing aggravating

factors at sentencing, and, in so doing, paying mere lip service to the plea

agreement’s requirement that the government recommend a sentence at the low

end of Anderson’s advisory guidelines range.

      Anderson also argues that, in the calculations of his advisory guidelines

range, the district court erred in declining to group Counts Three (carjacking) and

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Four (attempted robbery) because, he contends, those counts involved the same

victim and the same series of acts or transactions. Further, Anderson maintains

that his 235-month total sentence, at the top of his advisory guidelines range, is

unreasonable because his criminal history category overstated the severity of his

prior convictions and his sentence is unwarrantedly disparate from those of his co-

defendants.

                         III.   STANDARD OF REVIEW

      When the defendant has preserved his objection in the district court, we

review de novo whether the government breached the plea agreement. United

States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). Where a defendant fails

to object, however, we review only for plain error. Puckett v. United States, 556

U.S. 129, 135-36, 143, 129 S. Ct. 1423, 1428-29, 1433 (2009); see also United

States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). “Under plain error

review, there must be (1) an error, (2) that is plain, (3) that affects the defendant’s

substantial rights, and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” De La Garza, 516 F.3d at 1269. For an error

to be plain, it “must be clear or obvious, rather than subject to reasonable dispute.”

Puckett, 556 U.S. at 135, 129 S. Ct. at 1429.

      We review de novo the district court’s interpretation of the Guidelines and

its application of the Guidelines to the facts. United States v. Register, 678 F.3d

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1262, 1266 (11th Cir. 2012). However, we review for clear error the district

court’s findings of fact. Id.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007).

                                IV.   DISCUSSION

A.    Plea Agreements

      “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). The government breaches a

plea agreement when it advocates for a position “flatly inconsistent” with its

previous promise. See id.

      This Court interprets plea agreements using the following three principles:

first, “a hyper-technical reading of the written agreement and a rigidly literal

approach in the construction of language should not be accepted”; second, the

written agreement is “viewed against the background of the negotiations and

should not be interpreted to directly contradict an oral understanding”; and third, “a

plea agreement that is ambiguous must be read against the government.” United

States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990) (quotation marks and

alterations omitted). Nevertheless, this Court will consider extrinsic evidence

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“[o]nly where the language of the agreement is ambiguous, or where government

overreaching is alleged.” Copeland, 381 F.3d at 1105 (quotation marks omitted).

B.    Relevant Grouping Law in Chapter Three, Part D

      The Sentencing Guidelines call for grouping counts together where “conduct

that represents a separate count, e.g., bodily injury or obstruction of justice, is also

a specific offense characteristic in or other adjustment to another count.” U.S.S.G.

§ 3D1.2(c) cmt. 5. This provision “prevents ‘double counting’ of offense

behavior,” but applies only where the offenses are closely related. Id.

      The Sentencing Guidelines also call for grouping when two or more counts

involve “the same victim and the same act or transaction” or “the same victim and

two or more acts or transactions connected by a common criminal objective or

constituting part of a common scheme or plan.” U.S.S.G. § 3D1.2(a) and (b).

“Victim” as used in § 3D1.2 “is not intended to include indirect or secondary

victims.” Id. cmt. n.2. “Generally, there will be one person who is directly and

most seriously affected by the offense and is therefore identifiable as the victim.”

Id.

C.    Breach of Anderson’s Plea Agreement

      1.     Grouping

      The government did not breach the plea agreement by agreeing with the

probation officer’s grouping determination. In the plea agreement, the government

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agreed to jointly recommend that certain specific offense characteristics and base

offense level calculations would apply to Anderson’s guidelines calculation for

Counts Three and Four. [Doc. 34-1 at 5] Specifically, the plea agreement

provided for a specific base offense level calculation under § 2B3.1(a), and

dictated the consideration of four specific offense characteristics under

§§ 2B3.1(b)(3)(B), (b)(4)(A), (b)(5), and (b)(7)(A). [Id. at 5] However, “[e]xcept

as expressly stated elsewhere” in the plea agreement, the government “reserve[d]

the right to make recommendations regarding application of the Sentencing

Guidelines.” (emphasis added). [Id. at 8]

      The plea agreement was not ambiguous in this respect, nor is our

interpretation of the unambiguous plea agreement “hyper-technical.” Jefferies, 908

F.2d at 1523. Rather, the plea agreement expressly governed only the application

of one base offense level calculation and four specific offense characteristics,

which are found in Chapter Two, Part B, and said nothing about, and certainly did

not bind the government to, any application of the separate grouping rules, which

are found in Chapter Three, Part D. In fact, the plea agreement did not mention

§ 3D1.2 or § 3D1.4’s multiple-count grouping rules at all, let alone “expressly”

dictate their application to Anderson’s advisory guidelines calculation.

      In sum, whether the offenses in Counts Three and Four were to be grouped

under the rules in § 3D1.2 was not contained within, much less restricted by, the

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scope of the plea agreement. Rather, pursuant to the terms of the plea agreement,

the government reserved the right to independently opine about the applicability of

§ 3D1.2 to Anderson’s sentence, which necessarily included the option of agreeing

with the probation officer’s assessment.

      We find no merit in Anderson’s argument that the guidelines range estimate

provided by the government at his change of plea hearing constitutes powerful

extrinsic evidence that the plea agreement was meant to group Counts Three and

Four. As described above, the terms of the plea agreement were unambiguous,

which means we should not look to extrinsic evidence to import any meaning into

the plea agreement. See Copeland, 381 F.3d at 1105. Indeed, this plea agreement

has both an “except as expressly stated” and an integration clause.

      Additionally, the government’s statements at the change of plea hearing did

not somehow constitute an agreement to recommend a 184-month sentence that it

subsequently breached. Rather, the government provided its estimate of the

guidelines range only in response to the district court’s questioning, and only in the

context of anticipating, at that moment, where the guidelines range could possibly

end up. In fact, both the district court and the plea agreement itself reminded the

parties that no one could predict Anderson’s advisory guidelines range at the time

of the plea. Moreover, the plea agreement did not contain a provision mentioning,

much less requiring, a 184-month sentencing recommendation.

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      We similarly find no merit in Anderson’s argument that the appeal waiver

and the use of the phrase “Counts Three and Four” in paragraph eight of the plea

agreement demonstrate the existence of an express agreement to jointly

recommend the grouping of Counts Three and Four pursuant to § 3D1.2.

(emphasis added). The appeal waiver and the phraseology of paragraph eight’s

language are not “express[] state[ments]” concerning the government’s “right to

make recommendations regarding application of the Sentencing Guidelines.”

Thus, Anderson is forced to argue that the plea agreement implies that the parties

agreed to group Counts Three and Four pursuant to § 3D1.2. In fact, at oral

argument, Anderson conceded that the plea agreement never mentioned

“grouping,” Chapter Three, or § 3D1.2 and, therefore, his sole contention was that

an “implied” agreement existed.

      But paragraph 15 of the plea agreement explicitly precludes the parties from

inferring the existence of a tacit or implied agreement concerning the government’s

ability to make Guidelines recommendations. If paragraph 15 of the plea

agreement did not exist, then Anderson would have a stronger argument.

However, the language contained in paragraph 15 unambiguously defeats the

notion that an implied agreement further limiting the government’s ability to make

Guidelines recommendations existed. Because the very terms of the plea




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agreement negate the possibility that an implied agreement existed, we refuse to

read between the lines to find one.

      2.     Brandishing Enhancement

      On appeal, Anderson asserts that the government breached the plea

agreement when it agreed with the probation officer’s assessment of a brandishing

enhancement under U.S.S.G. § 2B3.1(b)(2)(C). In the PSI, the probation officer

assessed the brandishing enhancement on Count Three, the carjacking. In

response, the government argues that the plea agreement did not expressly address

the applicability of § 2B3.1(b)(2)(C) and, therefore, it was not bound to make any

particular recommendation regarding that specific subsection.

      We need not decide whether paragraph eight of the plea agreement

encompassed any other possible offense characteristics contained in § 2B3.1. Even

assuming it did, the government’s statements at sentencing did not breach the plea

agreement. The court, not the government, brought up the brandishing

enhancement. The government’s counsel then responded to a question from the

district court and, as an officer of the court, was obligated to offer a truthful

response to the question asked. In doing so, the government’s attorney stated: “I

believe the probation officer is correct in her assessment. That doesn’t mean I am

recommending it.” Because the government was responding to a question from the

court as best as it could under the circumstances and immediately added that its

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response did not amount to a recommendation, the government’s statements did

not amount to a breach. See Taylor, 77 F.3d at 370.

      In any event, regardless of whether or not the government breached the plea

agreement, any error was harmless as the district court sustained Anderson’s

objection to that brandishing enhancement, and that enhancement was not used in

the calculation of Anderson’s advisory guidelines range. See Puckett, 556 U.S. at

141, 129 S. Ct. at 1432 (holding that the breach of a plea agreement is not a

structural error that “necessarily render[s] a criminal trial fundamentally unfair,”

nor does it “defy analysis by harmless-error standards by affecting the entire

adjudicatory framework”) (quotation marks omitted).

      3.     Aggravating Factors

      As to the government’s presentation of aggravating factors at sentencing, we

review that issue for plain error as Anderson made no objection about it at

sentencing. De La Garza, 516 F.3d at 1269. Here, there is no error, much less

plain error, because the government did not breach the plea agreement when

discussing the § 3553(a) factors. The government was responding directly to

Anderson’s inaccurate factual assertions regarding his criminal history and the

alleged sentencing disparities between him and his co-defendants. The

government was also responding to Anderson’s legal argument that a below-

guidelines sentence was warranted. Because the government preserved the right

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“to respond to . . . any misstatements of fact or law,” its arguments did not

constitute a breach of the plea agreement. Rather, the plea agreement only bound

the government to recommend a sentence at the bottom end of Anderson’s

advisory guidelines range, which is precisely what the government did.

D.    Merits of Grouping Under U.S.S.G. §§ 3D1.2(a), (b), and (c)

      As to the merits of the grouping issue, we cannot say that the district court

erred by declining to group Counts Three and Four. For starters, Counts Three and

Four were distinct crimes, both in the temporal sense and with respect to the

underlying offense conduct. Count Three involved the carjacking, abduction,

beating, and robbery of Moser. Count Four, on the other hand, involved the

attempted robbery of J&D and subsequent beating and disposal of Moser.

Moreover, though they happened the same morning, the carjacking of Moser

occurred roughly two hours before the defendants formed the idea of robbing J&D.

It was only after Anderson and his co-defendants made multiple attempts to

withdraw money with Moser’s debit card at various ATM machines, and only after

they beat Moser, that they formed the idea of robbing J&D.

      That said, Counts Three and Four should not have been grouped under

U.S.S.G. § 3D1.2(c). The initial carjacking, abduction, and beating of Moser that

comprised the specific offense characteristic enhancements of Count Three was not

the same underlying conduct that formed the factual basis for Count Four.

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Moreover, the taking of Moser to a vacant house and subsequent pistol whipping

of Moser’s face that comprised the specific offense characteristic enhancements of

Count Four was not the same underlying conduct that formed the factual basis of

Count Three. As such, grouping under § 3D1.2(c) was not necessary to avoid

“double counting,” as the specific offense characteristics in Count Three were not

the same offense conduct represented in Count Four, and vice versa. U.S.S.G.

§ 3D1.2(c) cmt. n.5; see United States v. Doxie, ___ F.3d ___, No. 15-11161, 2016

U.S. App. LEXIS 5, at *14-17 (11th Cir. Jan. 4, 2016).

      Similarly, Counts Three and Four should not have been grouped under

U.S.S.G. § 3D1.2(a) or (b). The only victim in Count Three was Moser. In Count

Four, J&D was the primary victim, as funds housed in a J&D strongbox (albeit

fictional) were the clear object of the attempted robbery. And while Moser was an

“indirect or secondary victim” in Count Four, he was not the “victim” in Count

Four for the purposes of § 3D1.2. See U.S.S.G. § 3D1.2 cmt. n.2.

      In sum, the common sentencing enhancements and temporal proximity of

Counts Three and Four do not negate the fact that two separate crimes involving

two different victims occurred. Thus, under the particular facts of this case, we

cannot say that the district court committed reversible error by not grouping

Counts Three and Four.




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                             V.    CONCLUSION

      Anderson’s remaining arguments lack merit and do not warrant further

discussion. For the reasons discussed above, we affirm Anderson’s convictions

and sentence.

      AFFIRMED.




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