           Case: 20-10189   Date Filed: 07/23/2020   Page: 1 of 8



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-10189
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:18-cr-00588-ACA-JHE-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JULIA HOLLIS MEYERS,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (July 23, 2020)

Before ROSENBAUM, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM:
              Case: 20-10189     Date Filed: 07/23/2020   Page: 2 of 8



      Julia Meyers appeals her 30-month total sentence for wire fraud and bank

fraud. A federal grand jury charged Meyers with 11 counts of wire fraud, in

violation of 18 U.S.C. § 1343, and six counts of bank fraud, in violation of 18

U.S.C. § 1344. Pursuant to a written plea agreement, she pleaded guilty to one

count of wire fraud and one count of bank fraud in exchange for dismissal of the

other 15 counts. As relevant here, in the plea agreement, the government agreed to

recommend that Meyers receive an offense-level reduction for acceptance of

responsibility. Meyers acknowledged that, “should [she] say or do something that

[was] inconsistent with acceptance of responsibility,” the government would be

released from its obligation regarding sentencing recommendations and instead

could make any recommendation it deemed appropriate in its sole discretion.

      At the sentencing hearing, the government stated that, although it had

planned to recommend a 21-month sentence consistent with its sentencing

memorandum, it had received an anonymous email on the morning of sentencing

purportedly sent by “current and former employees” of Meyers’s former employer,

Hibbett Sporting Goods. The source claimed to have evidence obtained from

Hibbett’s corporate office that would exonerate Meyers as proof that she “did not

knowingly circumvent funds from Hibbett to her personal accounts.” It included

personal information such as Meyers’s bank account information and password,

her mobile phone passcode and hotspot password, her home internet router names



                                         2
               Case: 20-10189    Date Filed: 07/23/2020    Page: 3 of 8



and passwords, and her Hibbett lease management system and financial system

login information. It also contained sealed information pertaining to Meyers’s PSI,

including the date of her interview and name of the probation officer who prepared

the report. Additionally, the email’s source purported to have 43 letters from

American Insurance Company—three of which were undated and attached to the

email bearing a letterhead with a P.O Box address matching an address that

Meyers had used to commit the fraud—referencing disbursements to Meyers in

amounts that coincided with the amounts identified in the indictment.

      Meyers objected to the entry of the email as hearsay testimony, which the

court overruled. The government then contended that Meyers (or someone on her

behalf) had sent the email, and as such, that the email was a violation of the plea

agreement’s provision that prohibited Meyers from engaging in conduct that was

inconsistent with acceptance of responsibility. Therefore, the government stated

that it was no longer bound by the plea agreement’s recommendation clause and

recommended that the court remove Meyers’s credit for acceptance of

responsibility. Under the new calculation, the government recommended—and the

court ordered—that Meyers be sentenced to 30 months’ imprisonment.

      On appeal, Meyers asserts that her sentence is procedurally unreasonable

because the district court considered unreliable hearsay evidence in determining

that she did not accept responsibility for her offenses. She also argues that the



                                          3
               Case: 20-10189     Date Filed: 07/23/2020    Page: 4 of 8



government breached the plea agreement by not recommending that the court

apply acceptance-of-responsibility reductions to her offense level. After careful

review, we affirm.

                                           I

      We review the reasonableness of a sentence under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In

reviewing a sentence for reasonableness, we first consider whether the district

court committed any significant procedural error. Id. at 51. A sentence is

procedurally unreasonable if a district court commits an error “such as failing to

calculate (or improperly calculating) the Guidelines range” or “selecting a sentence

based on clearly erroneous facts.” Id.

      We review a district court’s factual findings for clear error and application

of the Sentencing Guidelines to those facts de novo. United States v. Whatley,

719 F.3d 1206, 1214 (11th Cir. 2013). Clear error review is deferential, and we

“will not disturb a district court’s findings unless we are left with a definite and

firm conviction that a mistake has been committed.” United States v. Ghertler,

605 F.3d 1256, 1267 (11th Cir. 2010) (quotation omitted). To prevail on a

challenge to the sentencing court’s consideration of hearsay evidence, “a defendant

must show (1) that the challenged evidence is materially false or unreliable and

(2) that it actually served as the basis for the sentence.” Id. at 1269.



                                           4
               Case: 20-10189     Date Filed: 07/23/2020    Page: 5 of 8



      The district court has discretion to consider relevant information at

sentencing “without regard to its admissibility under the rules of evidence

applicable at trial.” U.S.S.G. § 6A1.3(a). Thus, the court can rely on hearsay

evidence during sentencing so long as the evidence has sufficient indicia of

reliability to support its probable accuracy, and provided that the defendant has

“the opportunity to rebut the evidence or generally to cast doubt upon its

reliability.” United States v. Query, 928 F.2d 383, 384–85 (11th Cir. 1991)

(quotation omitted); see also United States v. Zlatogur, 271 F.3d 1025, 1031 (11th

Cir. 2001) (holding the district court properly considered hearsay at sentencing

where both parties had an opportunity to submit arguments to the court before

ruling). Moreover, as we recently clarified, the Sentencing Guidelines permit the

use of hearsay testimony that would otherwise be inadmissible so long as the

overall record, not just the hearsay testimony itself, provides sufficient indicia of

reliability. United States v. Baptiste, 935 F.3d 1304, 1308 (11th Cir. 2019), cert.

denied, No. 19-7988, 2020 WL 2105586 (U.S. May 4, 2020). The sentencing

court’s failure to make explicit reliability findings does not require reversal where

the hearsay’s reliability is apparent from the record. Id. at 1316.

      Here, district court didn’t clearly err in considering an anonymous email

containing information pertinent to the offense conduct as reliable hearsay

testimony of Meyers’s non-acceptance of guilt during her sentencing hearing



                                           5
               Case: 20-10189     Date Filed: 07/23/2020   Page: 6 of 8



because the overall record provided sufficient indicia of reliability that she was

responsible for it. Although the court didn’t make an explicit finding that Meyers

was the e-mail’s author, it stated there were “adequate grounds” to find that she

was responsible for it and, therefore, had not accepted responsibility. The court’s

implicit finding is sufficient because Meyers is the only person who could have

known, or had access to, all the information included in the e-mail and attached

letters. See id. at 1316 (“[W]here the record and the circumstances of the case

demonstrate adequate indicia of reliability, findings are not strictly necessary.”

(quotation omitted)).

      Furthermore, Meyers had an opportunity to rebut and cast doubt on the

anonymous email’s reliability. The court afforded Meyers’s counsel an

opportunity to respond to the evidence at the hearing and asked Meyers if she was

the e-mail’s source. See Zlatogur, 271 F.3d at 1031 (holding that the district court

properly considered hearsay evidence at sentencing where both parties had an

opportunity to submit arguments to the court before ruling). Although Meyers

argues that the government should have moved for a continuance to allow her time

to rebut the evidence, Meyers did not request a continuance in order to prepare an

adequate rebuttal. See United States v. Giltner, 889 F.2d 1004, 1008 (11th Cir.

1989) (finding no error where the defendant did not request a continuance to

prepare a rebuttal to hearsay information provided by the government). The email



                                          6
               Case: 20-10189     Date Filed: 07/23/2020   Page: 7 of 8



was addressed to both the government and Meyers’s counsel, and the parties had

an equal amount of time to prepare for its possible introduction at sentencing.

                                          II

      Whether the government has breached a plea agreement is reviewed de

novo. United States v. Rothstein, 939 F.3d 1286, 1290 (11th Cir. 2019), cert.

denied, No. 19-1072, 2020 WL 1668358 (U.S. April 6, 2020). However, where a

defendant has failed to raise the issue before the district court, we review only for

plain error. Puckett v. United States, 556 U.S. 129, 133–35 (2009).

      Plea agreements are like contracts and are interpreted in accord with what

the parties intended. United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir.

2005). Therefore, the government is bound to any material promises made to

induce the defendant to plead guilty. United States v. Thomas, 487 F.3d 1358,1360

(11th Cir. 2007). However, a plea agreement does not preclude the government

from disclosing relevant information to the sentencing court so long as it does not

expressly violate any of its obligations under the agreement. United States v.

Horsfall, 552 F.3d 1275, 1282–83 (11th Cir. 2008); see also United States v.

Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992).

      To evaluate whether the government breached a plea agreement, we must

determine the scope of the government’s promises and ask whether the

government’s conduct was inconsistent with the defendant’s reasonable



                                          7
              Case: 20-10189     Date Filed: 07/23/2020   Page: 8 of 8



understanding when she entered her guilty plea. United States v. Sosa, 782 F.3d

630, 637 (11th Cir. 2015). A plea agreement’s unambiguous meaning controls.

United States v. Copeland, 381 F.3d 1101, 1106 (11th Cir. 2004). The language of

the agreement is given its ordinary and natural meaning, absent some indication

that the parties intended otherwise. See Rubbo, 396 F.3d at 1334–35.

      Here, the government didn’t breach the plea agreement. Based on the

agreement’s unambiguous terms, the government’s obligation to recommend an

offense-level reduction for acceptance of responsibility was released when the

district court implicitly found that Meyers was the email’s source and, therefore,

that she had acted inconsistently with acceptance of responsibility.

      AFFIRMED.




                                          8
