                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            OCT 21, 2010
                              No. 10-10199                   JOHN LEY
                          Non-Argument Calendar                CLERK
                        ________________________

                 D.C. Docket No. 1:08-cr-00355-BBM-ECS-3

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,


                                   versus


JACK PADILLA,

                                                         Defendant-Appellant.

                        ________________________

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

                             (October 21, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Defendant-appellant Jack Padilla was charged with conspiracy to possess
with intent to distribute marijuana, conspiracy to commit money laundering, and

aiding and abetting money laundering, in violation of 21 U.S.C. § 846 and 18

U.S.C. §§ 1956(a) and 2. He agreed to plead guilty to the drug offense.

      The written plea agreement included the government’s promise to inform

the court of Padilla’s cooperation and potentially move for a reduction in his

sentence based on his substantial assistance. The agreement also contained a

waiver-of-appeal provision in which Padilla waived his right to directly appeal or

collaterally attack his conviction and sentence unless the court imposed a sentence

with an upward departure or variance.

      At the change-of-plea hearing, the court confirmed that Padilla had read and

understood the waiver provision and that he voluntarily agreed to the terms of the

plea agreement. After discussing the charges against him and the rights he would

give up by pleading guilty, the court determined that Padilla was freely and

voluntarily entering a plea and adjudicated him guilty.

      The probation officer completed a presentence investigation report (PSI)

and determined that the guideline range for Padilla’s offense was 235 to 293

months’ imprisonment. The probation officer noted that Padilla had been

debriefed multiple times and that Padilla requested a downward departure in his

sentence based on his substantial assistance. He also requested a minor-role

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reduction under U.S.S.G. § 3B1.2.

       At sentencing, after listening to Padilla’s arguments regarding his role in the

conspiracy, the district court denied the minor-role reduction, but explained that

the decision was “a close one.” The court also rejected an enhancement for

possession of a weapon, which decreased Padilla’s guideline range to 188 to 235

months’ imprisonment. The government did not advise the court of the extent of

Padilla’s cooperation but Padilla did not object. Nevertheless, the court imposed a

sentence of 168 months’ imprisonment, below the advisory guideline range.

       Padilla now appeals, arguing that the government breached the plea

agreement by failing to advise the court of the extent of his cooperation and that

the court erred by denying his minor-role reduction.

       We review de novo whether the government breached a plea agreement.1

United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). Where the

defendant failed to object in the district court, we review only for plain error.

United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Under plain-error

review, we may recognize an error where there is (1) an error, (2) that is plain,

(3) that affects a defendant’s substantial rights, and, if the first three prongs are



       1
          A sentence-appeal waiver in a plea agreement does not waive the right to appeal a breach
of the plea agreement. See United States v. Copeland, 381 F.3d 1101, 1104-05 (11th Cir. 2004).

                                                3
met, in our discretion, (4) whether the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings. Id. The party seeking to establish

plain error has the burden of establishing prejudice. United States v. Rodriguez,

398 F.3d 1291, 1299 (11th Cir. 2005). To establish prejudice, the defendant must

show that the error affected his substantial rights. “[I]n most cases it means that

the error must have been prejudicial: It must have affected the outcome of the

district court proceedings.” United States v. De La Garza, 516 F.3d 1266, 1269

(11th Cir. 2008); see also Puckett v. United States, 129 S.Ct. 1423, 1432-34

(explaining that the question of prejudice does not relate to whether the defendant

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

the government’s breach).

      [W]here the effect of an error on the result in the district court is
      uncertain or indeterminate—where we would have to speculate—the
      appellant has not met his burden of showing a reasonable probability
      that the result would have been different but for the error; he has not
      met his burden of showing prejudice; he has not met his burden of
      showing that his substantial rights have been affected.

Rodriguez, 398 F.3d at 1301.

      A material promise by the government, which induces the defendant to

plead guilty, binds the government to that promise. Santobello v. New York, 404

U.S. 257, 262 (1971). The failure to adhere to the promises entitles the defendant



                                           4
to specific performance of the contract with resentencing before a different judge

or the right to withdraw his guilty plea.2 See Puckett, 129 S.Ct. at 1430. But

when, as here, the defendant failed to preserve the error, relief still requires that

the defendant show prejudice. Id. at 1433.

       Here, the PSI noted that government agents had debriefed Padilla and

Padilla advised the court that he had been cooperating with the government. But

the government failed to inform the court of Padilla’s cooperation as it promised

to do. Although Padilla put the information before the court, this does not satisfy

the government’s promise to advise the court of Padilla’s cooperation. Therefore,

Padilla can establish the first two prongs of the plain-error analysis.

       But despite the government’s breach, Padilla is not entitled to relief because

he has not established that he was prejudiced. The district court considered

Padilla’s arguments and the sentencing factors set out in 18 U.S.C. § 3553(a). The

court also gave a detailed explanation to support the decision to vary downward



       2
           The decision to remand or permit the defendant to withdraw his plea is within the district
court’s discretion. But “the remedy of withdrawal of the guilty plea has not been favored in this
circuit.” United States v. Jefferies, 908 F.2d 1520, 1527 (11th Cir. 1990). Specific performance is
appropriate when there is no question that the plea was knowingly and voluntarily entered. United
States v. Tobon-Hernandez, 845 F.2d 277, 281 (11th Cir. 1988) (“Tobon-Hernandez knowingly and
voluntarily entered his guilty plea. To allow him to withdraw that plea and proceed to trial would be
unwarranted. Rather, his voluntary plea agreement should bind him just as it binds the
government.”).


                                                 5
from the advisory guideline range. On this record, we cannot be certain that the

court would have imposed a greater variance from the guideline range if alerted to

the extent of Padilla’s cooperation. Rodriguez, 398 F.3d at 1301. Thus, Padilla

has not shown that the breach affected the outcome of his sentencing and he is not

entitled to relief.

                                          II.

       Because we conclude that Padilla is not entitled to relief, the plea agreement

is valid and we will hold Padilla to its terms. In this case, the plea agreement

contained a waiver-of-appeal provision that will bar Padilla’s sentencing challenge

provided that the waiver was entered into knowingly and voluntarily.

       We review the validity of a sentence-appeal waiver provision of a plea

agreement de novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir.

1993). A sentence-appeal waiver must be made knowingly and voluntarily and is

valid if the government shows either that: (1) the district court specifically

questioned the defendant about the waiver; or (2) the record makes clear that the

defendant otherwise understood the full significance of the waiver. Id. at 1350-51.

       Here, the district court specifically questioned Padilla about the waiver and

Padilla indicated that he understood it. Because Padilla’s appeal waiver was

entered into knowingly and voluntarily, it is enforceable to bar his sentence

                                          6
appeal. Accordingly, we dismiss Padilla’s challenge to his sentence.

      AFFIRMED IN PART, DISMISSED IN PART.




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