     Case: 15-20577       Document: 00513647291         Page: 1     Date Filed: 08/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                     No. 15-20577
                                                                                 FILED
                                                                           August 22, 2016
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JERAMY JEROME GAGE,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-336-1


Before SMITH, BARKSDALE, AND HAYNES, Circuit Judges.
PER CURIAM: *
       Jeramy Jerome Gage pleaded guilty, pursuant to a written plea
agreement, to conspiring to possess, with intent to distribute, five kilograms or
more of cocaine and less than 50 kilograms of marijuana, in violation of 21
U.S.C. §§ 841 and 846. The court sentenced him at the bottom of the applicable
advisory Guidelines sentencing range to, inter alia, 292 months’ imprisonment.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 15-20577

Gage challenges his sentence, contending the Government breached the plea
agreement in two ways.
      The plea agreement included a waiver of Gage’s right to appeal his
sentence; but, obviously, the waiver is unenforceable if the Government
breached the agreement. See United States v. Keresztury, 293 F.3d 750, 756–
57 (5th Cir. 2002). Although the parties disagree on the applicable standard
of review, we need not resolve that issue because Gage cannot make the
requisite showing under either a plain-error or de novo standard. See United
States v. Le, 512 F.3d 128, 132 (5th Cir. 2007).
      Gage contends the Government agreed to recommend to the sentencing
court: a 188-month sentence; and a three-point reduction for acceptance of
responsibility. “[W]hen a guilty plea rests in any significant degree on a
promise or agreement of the [Government], so that it can be said to be part of
the inducement or consideration, such promise must be fulfilled”.           United
States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993) (internal quotation marks
omitted). The proper inquiry is whether the Government’s conduct comports
with Gage’s reasonable understanding of the agreement. United States v.
Roberts, 624 F.3d 241, 245–46 (5th Cir. 2010). Gage “bears the burden of
demonstrating a breach of the agreement by a preponderance of the evidence”.
United States v. Loza-Gracia, 670 F.3d 639, 642 (5th Cir. 2012).
      Regarding the length of sentence, Gage maintains the Government
undermined that agreement during the sentencing hearing, and “essentially
apologiz[ed]” for its leniency. Nevertheless, the record reflects the Government
offered an explanation for that recommendation, which was also set forth in
the plea agreement, but did not disavow, or apologize for, it. The Government
is not generally required to advocate enthusiastically for a particular




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                                 No. 15-20577

sentencing recommendation, even where it has promised to make it. See
United States v. Benchimol, 471 U.S. 453, 455–57 (1985).
      Additionally, the Government did not agree to recommend a three-point
reduction for acceptance of responsibility; instead, it agreed not to oppose
Gage’s anticipated request for such a reduction. A review of the sentencing
transcript shows the Government complied with that agreement; it stated
Gage had done enough to receive credit for acceptance of responsibility.
      In sum, Gage has not met his burden of establishing the requisite breach.
See, e.g., United States v. Long, 722 F.3d 257, 262 (5th Cir. 2013).
      AFFIRMED.




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