     Case: 19-20211       Document: 00515382279         Page: 1     Date Filed: 04/14/2020




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

                                                                                   FILED
                                     No. 19-20211                               April 14, 2020
                                   Summary Calendar                             Lyle W. Cayce
                                                                                     Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

EDWARD MAHAN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:16-CR-4-5


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Pursuant to a written plea agreement with an appeal waiver, Edward
Mahan pleaded guilty to possession, with intent to distribute, 500 grams or
more of a mixture or substance containing a detectable amount of cocaine, in
violation of 21 U.S.C. § 841(a)(1). He was sentenced to, inter alia, 60-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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 19-20211     Document: 00515382279     Page: 2   Date Filed: 04/14/2020


                                  No. 19-20211

      Mahan asserts the Government breached the plea agreement by
violating an unwritten promise to recommend that his relevant conduct be
limited to one kilogram of cocaine for purposes of determining his base offense
level under Sentencing Guideline § 2D1.1 (offense conduct).         (Mahan has
abandoned any claim that the appeal waiver is invalid. See United States v.
Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (citations omitted). Again, he
asserts that it was breached. And, premised on this alleged breach’s opening
the way to being able to appeal, he challenges: the substantive reasonableness
of his below-Guidelines, statutory minimum sentence; and the court’s
application of Guidelines §§ 2D1.1, 3E1.1 (acceptance of responsibility), and
5C1.2 (limitations on statutory-minimum sentences). Because his claim of
breach fails, we do not reach these issues.)
      Our court may consider whether the Government breached the plea
agreement, despite Mahan’s appeal waiver, because a breach by the
Government would release Mahan from the waiver.            See United States v.
Purser, 747 F.3d 284, 289 & n.11 (5th Cir. 2014) (citations omitted). Generally,
our court reviews de novo whether the Government breached a plea agreement.
United States v. Cluff, 857 F.3d 292, 297 (5th Cir. 2017) (citations omitted).
But, plain-error review applies if defendant failed to object to any breach in
district court. Id. (citations omitted).
      The parties dispute whether Mahan preserved his linchpin breach
contention. We need not decide the applicable standard of review, however,
because Mahan has not shown a breach of the plea agreement. See United
States v. Mesquiti, 854 F.3d 267, 275 (5th Cir. 2017) (noting the court “need
not determine the applicable standard of review” when appellant “fails to
establish reversible error even under the less demanding . . . standard”).




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    Case: 19-20211     Document: 00515382279     Page: 3   Date Filed: 04/14/2020


                                  No. 19-20211

      The Government breaches a plea agreement if its conduct was
inconsistent “with . . . defendant’s reasonable understanding of the
agreement”.    United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005)
(citations omitted). Appellant “has the burden of demonstrating a breach by a
preponderance of the evidence”. United States v. Casillas, 853 F.3d 215, 217
(5th Cir. 2017) (citation omitted).
      By failing to provide any details regarding the Government’s alleged
unwritten promise, Mahan has failed to show his guilty plea was induced by
such a promise. Further, the plea agreement and Mahan’s assurances to the
court at rearraignment do not support the existence of the alleged unwritten
promise.
      DISMISSED.




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