     Case: 17-10167      Document: 00514254177         Page: 1    Date Filed: 11/29/2017




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

                                    No. 17-10167                                 FILED
                                  Summary Calendar                       November 29, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANTHONY HARRISON BELL, also known as Pajaro,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:95-CR-264-7


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In 1995, Anthony Harrison Bell pleaded guilty pursuant to a written plea
agreement to conspiracy to distribute controlled substances.                         Prior to
sentencing, Bell absconded from supervision. As a result, he was not sentenced
until 2017.      The district court imposed a sentence of 168 months of
imprisonment and five years of supervised release.               Bell timely appealed,
arguing that the Government breached the plea agreement.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-10167    Document: 00514254177     Page: 2   Date Filed: 11/29/2017


                                 No. 17-10167

      Bell argues that the Government failed to perform its obligations under
the plea agreement by failing to file a U.S.S.G. § 5K1.1 motion for downward
departure and failing to recommend a 60-month sentence. He argues that he
“substantially complied” with the plea agreement before he absconded and
should, therefore, be given “the benefit of the bargain.”      He alternatively
asserts that he partially fulfilled his duties under the plea agreement and is
entitled to “some benefit” under the theory of quantum meruit.
      Bell has the burden of showing “the underlying facts that establish [the
Government’s] breach by a preponderance of the evidence.” United States v.
Long, 722 F.3d 257, 262 (5th Cir. 2013) (quoting United States v. Roberts, 624
F.3d 241, 246 (5th Cir. 2010)). In determining whether a breach occurred, we
must decide “whether the [G]overnment’s conduct is consistent with [Bell’s]
reasonable understanding of the agreement.” United States v. Hinojosa, 749
F.3d 407, 413 (5th Cir. 2014) (quoting United States v. Lewis, 476 F.3d 369,
387–88 (5th Cir. 2007)). A district court’s factual findings regarding an alleged
breach are reviewed only for clear error. United States v. Loza-Gracia, 670
F.3d 639, 642 (5th Cir. 2012).
      The plea agreement provided, in relevant part, that Bell “shall cooperate
with the Government, by giving truthful and complete information and
testimony concerning his and others[’] participation in and knowledge of the
crimes committed by persons named in the indictment and others not named.”
The plea agreement provided that the Government would move for a
downward departure “if [Bell] fully complie[d] with the terms” of the plea
agreement. The agreement also provided that the Government’s sentencing
recommendation and motion for downward departure were “wholly dependant
on [Bell’s] total and complete cooperation with any law enforcement agency.”




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    Case: 17-10167     Document: 00514254177        Page: 3   Date Filed: 11/29/2017


                                  No. 17-10167

      Here, the district court credited an affidavit by the investigators who
debriefed Bell and found that, although Bell had provided some useful
information, he also had been untruthful and not entirely forthcoming
regarding his role in the offense and the role of one of his coconspirators. The
district court’s factual finding is not clearly erroneous and demonstrates that
Bell failed to provide “total and complete cooperation.” The Government’s
sentencing   recommendations       were       expressly   conditioned   upon    such
cooperation. Thus, Bell has not shown that the Government breached the plea
agreement.
      Finally, Bell argues that he “is entitled to recover in quantum meruit.”
As he failed to raise this objection below, our review is for plain error only. See
United States v. Olano, 507 U.S. 725, 732 (1993). Bell does not point to any
authority indicating that the district court erred by failing to award him “some
benefit” in quantum meruit, and therefore has not demonstrated any potential
error was “plain.” Cf. United States v. Guillen-Cruz, 853 F.3d 768, 772 (5th
Cir. 2017) (“[G]enerally, ‘if a defendant’s theory requires the extension of
precedent, any potential error could not have been “plain.”’” quoting United
States v. Guzman, 739 F.3d 241, 246 n.8 (5th Cir. 2014)).
      AFFIRMED.




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