                Case: 11-16135        Date Filed: 05/01/2013       Page: 1 of 14


                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                             FOR THE ELEVENTH CIRCUIT
                                   ___________________
                                       No. 11-16135
                                   ___________________
                          D.C. Docket No. 2:10-cr-14069-JEM-3


UNITED STATES OF AMERICA,
                                                             Plaintiff-Appellee,
                                              versus
DARRIUS JAMAR GATLIN,
                                                             Defendant-Appellant.
                               ________________________
                       Appeal from the United States District Court
                           for the Southern District of Florida
                             ________________________
                                         (May 1, 2013)




Before MARCUS, HILL, and SILER, * Circuit Judges.


SILER, Circuit Judge:


*
 Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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      Defendant Darius J. Gatlin pled guilty to conspiracy to possess with intent to

distribute cocaine and possession of a firearm in furtherance of a drug trafficking

crime. He appeals his sentence on the grounds that the government breached the

plea agreement. For the reasons that follow, we AFFIRM.


                                         I.

      In 2010, Gatlin and two co-defendants, James George and Jeff Holland,

conspired with an undercover ATF agent to rob a narcotic stash house. The

defendants and the agent, who posed as a narcotics courier, hatched a plan to rob

the stash house of fifteen kilograms of cocaine. For his role in the robbery, the

agent was to keep five kilograms of cocaine.


      On the night of the planned robbery, the defendants met the agent at a park

in Tamarac, FL. From there, the agent drove them to an undercover warehouse to

make their final preparations and discuss the robbery plan one last time. The agent

was going to enter the stash house and leave with two kilograms of cocaine and the

defendants were supposed to come in behind him after he left and take the rest by

force. After discussing the plan, the agent left the warehouse and the defendants

were arrested by the police.


      At some point after his arrest, Gatlin told investigators that when he, George,

and Holland met at the park on the night of the planned robbery, they decided that

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robbing the stash house was too risky and instead they were going to double cross

the agent and rob him of the two kilograms of cocaine that he was supposed to take

from the stash house. On this basis, in exchange for a guilty plea by Gatlin, the

government agreed to jointly recommend to the court, for the purposes of

sentencing, that the quantity of cocaine involved in the offense was at least 500

grams but less than two kilograms. However, as part of the plea agreement, Gatlin

signed a stipulation of facts that twice referenced fifteen kilograms of cocaine, but

failed to mention the defendants’ alleged last minute change of plan to instead rob

the agent of two kilograms.


      The district court first questioned the factual basis for this recommendation

at the change of plea hearing for Gatlin and George. Fletcher Peacock, Gatlin’s

attorney, explained to the district court that the “actual agreement,” in the

conspiracy, not the plea agreement, was for an amount of cocaine between 500

grams and two kilograms. Assistant United States Attorney Russell Killinger

responded that he did not “know that [he could] accept that” proposition.

Ultimately the court made it clear that it would consider the recommendation in the

plea agreement, but that the defendants “[couldn’t] change facts” and that it was

the court’s responsibility to “decide[] what the facts are, not the government.”


      George and Gatlin were sentenced on the same day, with George going first.

After listening to George’s objection to and argument against the quantity of
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cocaine found to be involved in the offense in the presentence investigation report

(“PSR”), which was fifteen kilograms, the court stated that it was “not going to go

for the two kilos,” and that it did not “care what the government recommend[ed].”


      Nevertheless, the court then pressed Killinger to defend the government’s

recommendation. Killinger stated that paragraph 23 of the PSR was the “whole

reason” for recommending two kilograms of cocaine. Paragraph 23 of the PSR

states that “[i]n a later debriefing, Gatlin told agents that he, George and Holland,

had agreed among themselves that instead of robbing the stash house, they would

rob the [undercover agent] after he left the stash house with two kilograms of

cocaine.”


      Killinger recounted the specifics of paragraph 23 to the court, stating that,

according to Gatlin, the defendants “changed their plan” when they got to the park

and were going to “just . . . rip off the undercover when he came out with his two

kilos.” Killinger finished his defense of the government’s recommendation by

stating that “there is [] somewhat of a factual basis” for two kilograms as the

quantity of cocaine, but charged that it was the defense’s burden to establish that

quantity.   After hearing from George’s counsel again, the court rejected the

recommendation because it could not “accept as true something that [it did] not

believe is true.”


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       After the court sentenced George, it immediately began the sentencing

hearing for Gatlin. Peacock informed the court that he had been present during

George’s sentencing hearing and that he wished to object to the quantity of cocaine

recommended in the PSR.             Before hearing Peacock’s argument, the court

summarized for Gatlin’s benefit that it did “not choose to accept a recommendation

that the amount involved in this case was two kilograms,” that it had no doubt “that

the amount being discussed was in fact 15 kilograms,” and that “whether the

defendants had a subjective standard in their own minds that they were only going

to . . . steal two kilograms . . . [did]n’t matter.”


       The court then allowed Peacock to make an argument on behalf of his client.

Prior to the court’s rejection of two kilograms as the quantity of cocaine, Killinger

spoke only once. He was asked by the court to clarify what the agent’s cut was

supposed to be and how much he was supposed to take from the stash house.

Killinger stated that “the agent’s cut of 15 was going to be five,” and that the

“understanding was [] that the undercover agent was going to go into the house and

that he was [going] to leave with two, and then [the defendants] were going to go

in and take the remainder.” In concluding his argument, Peacock responded to the

burden of proof charge that Killinger had made during George’s hearing by

asserting that “under the guideline system it is the Government’s burden to go

forward and to prove the amount when it’s objected to.”

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      The court overruled Gatlin’s objection, but then asked the government

whether it had anything to add to the argument before it considered a motion for a

downward variance under 18 U.S.C. § 3553(e). Killinger stated that “I did enter

into this plea agreement, I abide by the – I’m not retreating from the nonbinding

joint recommendation . . . .” He further stated that the PSR “referenced [] 15

kilograms” “three or four times,” and that Gatlin had not objected to those

references. He concluded that “as far as any Government[] burden or the Court’s

basis for finding relevant conduct in this case, I think there’s more than a sufficient

basis to do so.”


      The court sentenced both George and Gatlin using fifteen kilograms as the

quantity of cocaine involved in the offense for purposes of calculating their

guideline range. Gatlin was granted a downward variance under § 3553(e) and

sentenced to 132 months imprisonment for Count I, for a total sentence of 192

months imprisonment. Gatlin timely appealed.


                                          II.

      We review de novo the question of whether the government breached a plea

agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004).

However, where a defendant fails to object to an alleged breach of a plea




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agreement before the district court, we review for plain error. United States v.

Romano, 314 F.3d 1279, 1281 (11th Cir. 2002).


      The parties dispute the applicable standard of review. The government

argues that Gatlin failed to object in the district court to the government’s

performance of its obligations under the plea agreement. Gatlin argues that it

would have served no purpose for his counsel to formally object. He contends that

the policies behind the contemporaneous objection requirement are not implicated

here because the government would not have cured its breach. Alternatively,

Gatlin cites United States v. Todd, 486 F. App’x 88 (11th Cir. 2012) (unpublished),

for the proposition that although he never expressly objected to the government’s

performance, it was clear to the district court that he thought the government was

breaching the plea agreement.


      The facts here resemble those in Romano, where the underlying issue was

the application of specific sentencing guideline enhancements. 314 F.3d at 1280-

81. The government had agreed not to oppose the defendant’s request that only

three specific enhancements be applied, which would have increased the

defendant’s offense level to 19. Id. at 1280. At sentencing, the probation officer

recommended in the PSR that two additional enhancements be applied to raise the

offense level to 23. Id. The government supported and argued for the application

of the additional enhancements. Id. at 1281. Although the defendant objected to
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the application of the enhancements, he never objected to the government’s breach

of the plea agreement. Id. at 1280. On appeal, we held that the defendant failed to

raise the government’s breach before the district court and was thus subject to plain

error review. Id. at 1281.


      Here, like the defendant in Romano, Gatlin argued the underlying issue—the

quantity of cocaine involved in the offense conduct. However, at no time did

Gatlin object to the government’s performance of its obligation under the plea

agreement. Gatlin’s reliance on United States v. Ly, 646 F.3d 1307 (11th Cir.

2011), for the contention that the policies behind the contemporaneous objection

requirement are not implicated here is misplaced. In holding that plain error

review did not apply to Ly’s claim, we reasoned that plain error review would have

been absurd where Ly’s ignorance of the law “was so apparent during the court-

initiated colloquy that the district court was obligated to correct his

misunderstanding.” Id. at 1312 n.5. Here, it was not “so apparent” that Gatlin was

ignorant of the government’s requirement to meet its obligations under the plea

agreement or ignorant of what those obligations were that the court was obligated

to intervene.


      Gatlin’s reliance on Todd is also misplaced.            There, the defendant

specifically raised the issue of the government’s promise in the plea agreement in

response to a dispute with the government as to whether the defendant had met the
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requirements in order to receive a reduction for the acceptance of responsibility.

Todd, 486 F. App’x at 90-91. No such dispute was present here. When the

government asserted that it was not retreating from the joint recommendation, it

was doing so because the court had already overruled Gatlin’s objection to the

quantity of cocaine recommended in the PSR, not because Gatlin alleged a breach.


                                         III.

      Plain error exists where (1) there is error, (2) that is plain, (3) that affected

the defendant’s substantial rights, and (4) that “seriously affect[ed] the fairness,

integrity, or public reputation of the judicial proceedings.” Romano, 314 F.3d at

1281. An error is plain if it is “clear or obvious, rather than subject to reasonable

dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009).


      A. Clear and Obvious Error

      The government breached the plea agreement here by undercutting its

promise at least four times. First, when Gatlin’s counsel explained to the court that

the “actual agreement,” in the conspiracy, not just the plea agreement, was for an

amount of cocaine between 500 grams and two kilograms, Killinger responded that

he did not “know that [he could] accept that” proposition. This was clearly a

“material reservation[] about the agreement.” United States v. Canada, 960 F.2d

263, 270 (1st Cir. 1992).

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      Further, although the plea agreement did not explicitly require the

government to stipulate that the “actual agreement” in the conspiracy was for less

than two kilograms, it was “entirely reasonable for [Gatlin] to understand the

government’s promise” to include this recommendation. United States v. Taylor,

77 F.3d 368, 370 (11th Cir. 1996). Otherwise, the court would not have had a

factual basis for the joint recommendation.


      Second, the government’s response to the court’s inquiry regarding the

agent’s role also undercut its promise to recommend a quantity of less than two

kilograms. Killinger concluded his response by stating that the defendants “were

going to go in and take the remainder.” While not directly contradicting the

government’s promise, Killinger’s failure to mention the defendants’ ulterior plan

to rob the agent of two kilograms as he left the stash house undercut the

government’s promise because it left the impression that the defendants had no

plan other than to rob all fifteen kilograms of cocaine.


      Third, the government never affirmatively recommended that the court find

that the quantity of cocaine involved in the offense was less than two kilograms.

The closest the government came during Gatlin’s sentencing was when Killinger

admitted that he entered into the plea agreement, and that he was abiding by and

“not retreating from the nonbinding joint recommendation.”


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      Lastly, Killinger’s response to Gatlin’s challenge regarding the burden of

proof for the objected-to quantity undercut the government’s promise because

Killinger highlighted that the court had “more than a sufficient basis” to determine

the quantity of cocaine, including setting it at fifteen kilograms, which Killinger

noted was referenced, and not objected to by Gatlin, “three or four times” in the

PSR. In fact, this statement actively advocated the court to find the quantity

involved to be fifteen kilograms, a quantity that is “inconsistent” and

“incompatible” with the agreed-upon recommendation. Taylor, 77 F.3d at 370-71.


      The numerous statements by the government undercutting its promise make

the government’s breach “clear or obvious, rather than subject to reasonable

dispute.” Puckett, 556 U.S. at 135. Thus, Gatlin satisfies the first prong of plain

error review.


      B. Substantial Rights

      In the context of an alleged plea agreement breach, the question of whether

the defendant’s substantial rights were affected is not whether the defendant would

have entered into the plea, but rather, whether his sentence was affected by the

government’s breach. Id. at 142 n.4. This requires Gatlin to show that there is a

“reasonable probability” that his sentence would be different. United States v.

Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). “[W]here the effect of an error


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on the result in the district court is uncertain or indeterminate – where we would

have to speculate – the appellant has not met the burden of showing . . . prejudice;

he has not met his burden of showing that his substantial rights have been

affected.” Id. at 1301 (citing Jones v. United States, 527 U.S. 373, 394-95 (1999)).


      Gatlin argues that the court indicated “some initial willingness” to consider

his argument at sentencing, but the government’s breach eliminated any chance

that the court would accept his position. However, the record clearly indicates

that, at the very least, the court was leaning toward overruling Gatlin’s objection

prior to his sentencing hearing.


      At the defendants’ joint change of plea hearing, when Peacock tried to

explain to the court that the agreement in the conspiracy involved less than two

kilograms of cocaine, the court responded by asking “how in the world is it less

than two?” The court further explained that the defendants couldn’t “change the

facts” and that the court is “the one that decides what the facts are, not the

Government.” The court then informed the parties that it would consider the

recommendation.


      At George’s sentencing, which occurred immediately before Gatlin’s, the

court found that the quantity of cocaine involved was fifteen kilograms and

declared that “[it didn’t] care what the Government recommend[ed],” and called


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Gatlin’s ulterior plan to rob the agent of two kilograms a “legal fiction.” The court

stated that it was “not crazy about Mr. Killinger having agreed to the fact that it

was two kilos,” because it did not believe that was true. At the opening of Gatlin’s

sentencing hearing, the court summarized George’s hearing for Gatlin’s benefit.

The court pronounced that it did “not choose to accept a recommendation that the

amount involved in this case was two kilograms,” that it had no doubt “that the

amount being discussed was in fact 15 kilograms,” and that “whether the

defendants had a subjective standard in their own minds that they were only going

to . . . steal two kilograms . . . [did]n’t matter.”


       These comments show that the court was well aware of the facts of the case

and the joint recommendation. Although the question of whether a breach of the

plea agreement affected the court is normally irrelevant under de novo review, see

Santobello v. New York, 404 U.S. 257, 262-63 (1971), under plain error review, its

effect on the court is directly relevant to the question of whether the defendant’s

substantial rights have been affected. See Rodriguez, 398 F.3d at 1299-1301.

Here, without the government’s breach, there is not a “reasonable probability” that

Gatlin’s sentence would be different. At best, it seems uncertain, and that is not

enough. Thus, the government’s breach did not affect Gatlin’s substantial rights.


       AFFIRMED.


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HILL, Circuit Judge, concurring:


Bound by our plain error standard of review, I concur.




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