                                                                                     FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           January 27, 2020
                                                                            Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 18-1342

 PASQUALE RUBBO, a/k/a Patsy Rubbo,
 a/k/a Anthony Rubbo,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:17-CR-00417-RBJ-3)
                       _________________________________

Rick E. Bailey, Conlee, Schmidt & Emerson, L.L.P., Wichita, Kansas, for the Appellant
Pasquale Rubbo.

Marissa R. Miller, Assistant United States Attorney (Jason R. Dunn, United States
Attorney, with her on the brief), Office of the United States Attorney for the District of
Colorado, Denver, Colorado, for the Appellee.
                        _________________________________

Before MORITZ, McKAY, and CARSON, Circuit Judges.
                  _________________________________

CARSON, Circuit Judge.
                    _________________________________

       This case arose out of a fraudulent business scheme involving the sale of the

“Scrubbieglove” cleaning product. Defendant Pasquale Rubbo (“Defendant”) and

other co-conspirators lied to investors to solicit money, ultimately defrauding them of
more than six million dollars. Defendant pleaded guilty to two fraud-related charges,

but now appeals his sentence because the government breached the Plea Agreement.

      Our jurisdiction arises under 28 U.S.C. § 1291. We hold the government did

not breach the Plea Agreement and, therefore, dismiss Defendant’s appeal.

                                              I.

      A grand jury returned an indictment against Defendant for fraud, conspiracy to

commit fraud, use of interstate commerce to conduct fraud, and engaging in monetary

transactions with funds derived from fraud.

      The conspirators lured potential investors to the “Scrubbieglove” by lying

about high returns on investment, potential and ongoing business deals, and how they

would use and invest funds. 1 They also misrepresented the Scrubbieglove’s

production demand. They falsely told investors that the Scrubbieglove required

substantial financing because of deals with QVC, Wal-Mart, Walgreens, and other

major retailers. In reality, beyond producing a few samples, the conspirators never

manufactured any Scrubbiegloves. Instead, the conspirators transferred investor

funds to their own personal bank accounts.

      Defendant’s primary role in the scheme involved intimidating and threatening

investors to ensure their silence. Defendant, for example, called investors and

threatened to sue and take away their investment money if they spoke with law

enforcement.


      1
       As reflected in the indictment, the conspirators originally named the
Scrubbieglove “Spongebuddy”, but they later rebranded it “Scrubbieglove.”
                                          2
      Defendant ultimately pleaded guilty to conspiracy to commit fraud and to

engaging in a monetary transaction involving the proceeds of criminal activity.

Defendant also waived his right to appeal the sentence. In exchange, the government

dismissed the remaining counts and, if Defendant “fully and truthfully” cooperated,

agreed to file a motion for a downward departure at sentencing. The government

specified that “based on the facts known to the government as of the date of the Plea

Agreement,” it expected to recommend a twenty-percent departure “from the high-

end of the applicable guideline range.”

      After being released on bond, however, Defendant communicated with a

known witness in the case—participating in phone calls, email exchanges, and wire

transfers to license the Scrubbieglove through the witness’s company. Defendant’s

actions violated the conditions of his bond, which prohibited him from contacting any

victim or witness in the case. Defendant neither informed the government of his

unpermitted contact with the witness, nor of his ongoing efforts to license the

Scrubbieglove.

      After the government learned of Defendant’s conduct, it recommended only a

fifteen-percent departure rather than twenty percent at sentencing. Defendant did not

object to the recommendation and did not respond to the government’s motion for

downward departure. 2 The district court accepted the recommendation and sentenced

Defendant to 106 months’ imprisonment.


      2
         Defendant admits he did not preserve his objection below, so we review for
plain error only. Under the plain error standard, Defendant must first demonstrate an
                                           3
      Afterward, Defendant appealed, arguing the government could not enforce the

appellate waiver in his Plea Agreement because it breached the agreement by not

recommending a twenty-percent departure. We review the question de novo. United

States v. Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003).

                                              II.

      “[A]n appellate waiver is not enforceable if the Government breaches its

obligations under the plea agreement.” United States v. Rodriguez-Rivera, 518 F.3d

1208, 1212 (10th Cir. 2008). We must therefore determine whether the government

breached. To do so, “we apply a two-step process: (1) we examine the nature of the

government’s promise; and (2) we evaluate this promise in light of the defendant’s

reasonable understanding of the promise at the time the guilty plea was entered.”

United States v. Brye, 146 F.3d 1207, 1210 (10th Cir. 1998). To evaluate the

government’s promise, we “apply general principles of contract law” based on “the

express language used in the [plea] agreement.” Id. And because the government

drafted the Plea Agreement, we construe all ambiguities against the government. Id.

                                         A.

      Defendant contends the government breached the Plea Agreement because it

promised – and later refused – to recommend a twenty-percent downward departure.




actual error. United States v. Kearn, 863 F.3d 1299, 1305 (10th Cir. 2017). Because
we conclude the government did not breach the Plea Agreement, Defendant fails at
step one. We therefore do not address the remaining elements of plain error review.
                                          4
To determine the government’s obligations, we examine the express language used in

the agreement. The agreement states:

      Provided that the defendant continues to fully and truthfully cooperate
      with the government as described above, as determined in the
      government’s sole discretion, the government agrees that it will file . . .
      a motion for downward departure, pursuant to Section 5K1.1 of the
      Sentencing Guidelines and Title 18, United States Code, Section
      3553(e). Based on the facts known to the government as of the date of
      the Plea Agreement, the government expects to file a motion for
      downward departure pursuant to Section 5K1.1 recommending a
      departure of twenty percent to be calculated from the high-end of the
      applicable guideline range.

ROA, Vol. 1 at 36–37 (emphasis added). The government agreed to file a motion for

downward departure so long as Defendant “fully and truthfully” cooperated with the

government. The government also stated that it expected to recommend a twenty-

percent departure “based on the facts known to the government as of the date of the

Plea Agreement.” Thus, the express language shows the government did not

unequivocally promise to recommend a departure of a certain percentage. United

States v. Robertson, 45 F.3d 1423, 1443 (10th Cir. 1995) (reasoning that the

government did not breach plea agreement where the promise of a specific sentencing

recommendation was “expressly premised on the [defendant’s] ‘tentative’ criminal

history”). Instead, the government conditioned its obligations on Defendant’s full

and truthful cooperation, as well as facts known to it at the time of execution. The

government also retained sole discretion to evaluate Defendant’s cooperation. The

government consequently made no promise to make a specific sentencing

recommendation.


                                           5
      Defendant next argues the government breached the agreement because it

made a smaller downward departure recommendation for reasons unrelated to

Defendant’s cooperation. The Plea Agreement states:

      The defendant agrees to cooperate fully, honestly, without reservation,
      and affirmatively with the government relating to any matter being
      investigated by the government about which the defendant may possess
      knowledge, information, or materials.

ROA, Vol. 1 at 35. The agreement obligated Defendant to cooperate affirmatively

with the government on any matter under investigation. Defendant concedes that

while out on bond, he and his co-conspirators attempted to license the

Scrubbieglove—the product at the center of the government’s case. Defendant also

does not dispute that he contacted a known witness in the case, which violated his

bond conditions. Defendant withheld this information from the government despite

his affirmative obligation to cooperate on any matter relating to the government’s

investigation. United States v. Lezine, 166 F.3d 895, 904 (7th Cir. 1999) (holding

that the defendant failed to “fully and truthfully cooperate with Government” where

he made “misrepresentations to probation officers”).

      Defendant’s attempts to license the Scrubbieglove, and his communications

with a witness relate to a “matter being investigated by the government” as described

in the Plea Agreement. The government unsurprisingly determined that Defendant’s

conduct warranted a reduced departure recommendation. Given that Defendant

withheld information relating to the government’s investigation, it did not breach the

Plea Agreement by recommending a fifteen-percent departure at sentencing.


                                          6
      Because the government did not breach the Plea Agreement, the appellate-

waiver provision in the agreement bars Defendant’s appeal.

      APPEAL DISMISSED.




                                         7
