                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-13540                 ELEVENTH CIRCUIT
                                                             FEBRUARY 17, 2010
                           Non-Argument Calendar
                                                                 JOHN LEY
                         ________________________
                                                                  CLERK

                   D. C. Docket No. 08-00007-CR-J-32-JRK

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JARVIS MCNEIL,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (February 17, 2010)

Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Jarvis McNeil appeals his total 90-month sentence for distribution
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and possession

of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A). On appeal, McNeil argues that the district court plainly erred by

failing to find that the government breached the terms of his plea agreement when

it delegated to a law enforcement officer its obligation to consider whether the

extent of his cooperation warranted the filing of a motion for substantial assistance,

pursuant to U.S.S.G. § 5K1.1. McNeil contends that the law enforcement officer’s

decision not to recommend the filing of a § 5K1.1 motion was arbitrary and

violated his due process rights. The government had negotiated a plea agreement

with McNeil, which provided that the government would consider filing a § 5K1.1

motion on McNeil’s behalf. The agreement included a sentence appeal waiver and

a separate waiver of the right to appeal the government’s determination as to

whether a § 5K1.1 motion would be filed. McNeil does not contest the validity of

the waivers.

      We review de novo whether the government breached the terms of the plea

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

However, we review issues not raised before the district court for plain error.

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005). We

will correct an error under plain error review if there is “(1) an error, (2) that is



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plain, (3) that affects substantial rights (which usually means that the error was

prejudicial), and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Mangaroo, 504 F.3d 1350,

1353 (11th Cir. 2007). We review the district court’s factual findings for clear

error. United States v. Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006).

       The Supreme Court has held that federal district courts may review the

government’s refusal to file a substantial-assistance motion if the defendant first

makes a “substantial threshold showing” that the refusal was based upon an

unconstitutional motive, such as race or religion. Wade v. United States, 504 U.S.

181, 185-87, 112 S. Ct. 1840, 1843-44, 118 L. Ed. 2d 524 (1992).

       A sentence appeal waiver “will be enforced if the government demonstrates

either: (1) the district court specifically questioned the defendant about the waiver

during the plea colloquy, or (2) the record clearly shows that the defendant

otherwise understood the full significance of the waiver.” United States v. Benitez

-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997) (emphasis omitted). An

enforceable sentence appeal waiver encompasses the government’s refusal to make

a § 5K1.1 motion. See id. at 1445-47 (dismissing an appeal of the district court’s

refusal to review the government’s decision not to file a § 5K1.1 motion because

the defendant waived the right to appeal that issue when he executed a valid



                                            3
sentence appeal waiver as part of his plea agreement). However, “[t]he district

court’s determination that the plea agreement has not been breached is

reviewable.” United States v. Gonsalves, 121 F.3d 1416, 1419 (11th Cir. 1997);

see Copeland, 381 F.3d at 1104-05 (reviewing, inter alia, allegations that the

government breached the plea agreement, notwithstanding the sentence appeal

waiver contained in the agreement).

      As to any potential breach, we have held that “[w]hen guilty pleas rest in any

significant degree on a promise or agreement of the prosecutor, so that it can be

said to be a part of the inducement or consideration, such promise must be

fulfilled.” Copeland, at 1105 (internal quotation marks omitted). To determine

whether the government has breached a plea agreement, “we must first determine

the scope of the government’s promises.” Id. “In determining the meaning of any

disputed terms in an agreement, the court must apply an objective standard and

must decide whether the government’s actions are inconsistent with what the

defendant reasonably understood when he entered his guilty plea.” Id. (internal

quotation marks omitted). When a breach of an agreement by the government has

been established, we may either order specific performance of the agreement, by

means of re-sentencing before a different judge, or allow withdrawal of the plea.

Santobello v. New York, 404 U.S. 257, 263, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427



                                          4
(1971).

      We need not decide whether the appeal waiver extends to McNeil’s

argument regarding an alleged breach of his plea agreement because McNeil’s

argument lacks merit. McNeil failed to provide evidentiary support for his claim

that the district court erred in failing to find that the government breached the terms

of its plea agreement by delegating to a law enforcement agent its decision-making

authority concerning whether to file a substantial assistance motion on behalf of

McNeil. The only evidence McNeil offered was his own testimony against the

agent, which the district court rejected on credibility grounds. McNeil has not

demonstrated that the district court’s factual findings are clearly erroneous.

Accordingly, the district court did not plainly err, and we affirm McNeil’s

sentence.

      AFFIRMED.




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