     Case: 12-51075       Document: 00512340315         Page: 1     Date Filed: 08/13/2013




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

                                                                            FILED
                                                                          August 13, 2013
                                     No. 12-51075
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RODNEY HARRISON, also known as Black Boy, also known as Rodney Elvy
Harrison,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:12-CR-464-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Rodney Harrison pleaded guilty to conspiracy to possess with intent to
distribute more than 28 grams of cocaine base in violation of 21 U.S.C. § 846,
and he was sentenced to 120 months of imprisonment and four years of
supervised release. Harrison pleaded guilty pursuant to a plea agreement in
which he waived the right to appeal his sentence.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51075

      Harrison argues that the Government breached its plea agreement when
the United States Probation Officer applied the career offender enhancement in
U.S.S.G. § 4B1.1, thereby, in his view, failing to provide the required notice that
it intended to seek an increased mandatory minimum sentence under 21 U.S.C.
§ 851. He contends that prior to his guilty plea, the Government wrote to his
attorney and explained that it would agree not to seek an adjustment based on
the career offender enhancement, contingent upon Harrison’s agreement to
plead guilty.
      The Government contends that nothing in the plea agreement addressed
whether Harrison would receive a career offender enhancement under the
Sentencing Guidelines. The Government argues that Harrison is confusing a
statutory sentence enhancement under §§ 841 and 851 with the career-offender
guideline enhancement under § 4B1.1.
      Although Harrison waived his right to appeal his sentence in his plea
agreement, we have held that “an alleged breach of a plea agreement may be
raised despite a waiver provision.” United States v. Roberts, 624 F.3d 241, 244
(5th Cir. 2010) (citing United States v. Keresztury, 293 F.3d 750, 755-57 (5th Cir.
2002). As a general rule, whether the Government breached a plea agreement
is a question of law subject to de novo review, but in this case our review is
limited to plain error because Harrison did not raise the breach issue in the
district court. See United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001). To
prevail on plain error review, Harrison must show that an error occurred, that
the error was clear or obvious, and that the error affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). In those circumstances, we
still must determine whether to exercise discretion to correct the error. United
States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012)(en banc).
      In determining whether the Government has breached a plea agreement,
we examine whether the Government’s conduct is consistent with the
defendant’s reasonable understanding of the agreement.           United States v.

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                                  No. 12-51075

Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011), cert. denied, 132 S. Ct. 1126 (2012).
The defendant has the burden of establishing the facts showing a breach. Id.
      Although it is not part of the written plea agreement, the Government
agreed in e-mail correspondence with Harrison’s counsel that although “the
government has the option of filing a notice of enhancement pursuant to 21
U.S.C. section 851, in which case the statutory mandatory minimum sentence
would be increased from 5 years to 10 years, and the term of supervised release
would be increased from 4 to 8 years” the Government would “agree not to file
a notice of enhancement if your client pleads promptly, i.e. before the next Ellis
deadline.” The correspondence did not mention the career offender enhancement
under the Sentencing Guidelines in § 4B1.1.
      The record shows that the Government complied with its agreement not
to seek a statutory sentence enhancement under § 851. The Government
correctly argues that a statutory sentence enhancement under § 841(b) and § 851
is different from a career offender sentence enhancement under § 4B1.1 of the
Guidelines. Harrison’s sentence was enhanced under § 4B1.1, not § 841(b), and
he therefore was not entitled to notice under § 851. See United States v.
Marshall, 910 F.2d 1241, 1245 (5th Cir. 1990). Harrison “could not have
reasonably understood the plea agreement” as prohibiting the career offender
enhancement. See Pizzolato, 655 F.3d at 410. Harrison has not demonstrated
plain error in the application of the career offender guideline under his plea
agreement. See Reeves, 255 F.3d at 210. We therefore do not need to address
Harrison’s argument about whether the inclusion of the career-offender
enhancement in the Pre-Sentence Report at the direction of the United States
Probation Office could qualify as a “Government breach.”
      The Government argues that Harrison’s appeal waiver should be enforced
and his appeal should be dismissed. Harrison has the right to appeal in order
to challenge his appeal waiver on grounds of breach of the plea agreement by the
Government. See Roberts, 624 F.3d at 244. However, having determined that

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the Government did not breach the plea agreement, Harrison may not appeal his
sentence. See Keresztury, 293 F.3d at 756-57 (distinguishing issue of breach of
plea agreement from sentencing issue); Pizzolato, 655 F.3d at 411-12
(determining that Government did not breach the plea agreement and that the
appeal waiver thus applied to the sentencing challenge).
      Although Harrison does not clearly delineate a sentencing issue separate
from his argument that the Government breached the plea agreement, he does
argue that the career offender enhancement was improper and that the district
court lacked the authority to enhance his sentence based upon a prior conviction
because the Government failed to comply with the notice procedures of § 851.
He asks that his case be remanded to the district court for a new sentence.
      Because the Government did not breach the plea agreement, the appeal
waiver is enforced to preclude consideration of this sentencing issue. However,
because Harrison had the right to appeal to challenge the appeal waiver in the
plea agreement based on a breach, we do not dismiss the appeal, but we affirm
his sentence. See Roberts, 624 F.3d at 244; Pizzolato, 655 F.3d at 412.
      AFFIRMED.




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