              Case: 13-14715   Date Filed: 02/02/2015   Page: 1 of 6


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-14715
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 6:13-cr-00068-CEH-KRS-2



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

JAMES MARVIN LOVETT,

                                                            Defendant-Appellant.

                          ________________________

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

                               (February 2, 2015)

Before MARCUS, MARTIN and BLACK, Circuit Judges.

PER CURIAM:

      James Lovett appeals his sentence of 151 months’ imprisonment for

conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, in
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violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and 846. On appeal, Lovett argues that

the government breached his plea agreement when it filed an information, pursuant

to 21 U.S.C. § 851, that increased his mandatory-minimum sentence to 20 years’

imprisonment. After careful review, we affirm.

      “Whether the Government breached a plea agreement is a question of law, to

be reviewed de novo.” United States v. De La Garza, 516 F.3d 1266, 1269 (11th

Cir. 2008). However, if the defendant fails to raise the issue before the district

court, we review only for plain error. Puckett v. United States, 556 U.S. 129, 133-

36, 143 (2009); De La Garza, 516 F.3d at 1269. To show plain error, the defendant

must show (1) an error, (2) that is plain, and (3) that affected his substantial rights.

United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.2007). If the defendant

satisfies the three conditions, we may exercise our discretion to recognize the error

if it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. To be plain, “the legal error must be clear or obvious, rather than

subject to reasonable dispute.” Puckett, 556 U.S. at 135. The Supreme Court has

said that the second prong of plain-error review “will often have some ‘bite’ in

plea-agreement cases” because “[n]ot all breaches will be clear or obvious,” since

“the scope of the [g]overnment’s commitments will on occasion be open to doubt.”

Id. at 143. “For an error to affect substantial rights, in most cases it means that the

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


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court proceedings.” De La Garza, 516 F.3d at 1269 (quotation omitted). In the

context of the government’s alleged breach of a plea agreement, the question of

prejudice does not depend on whether or not the defendant would have entered into

the agreement and pleaded guilty, but instead on whether the defendant’s ultimate

sentence was influenced by the government’s breach. Puckett, 556 U.S. at 141-42

& n.4; De La Garza, 516 F.3d at 1270-71.

      “[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or consideration,

such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262

(1971). “Whether the government violated the agreement is judged according to

the defendant’s reasonable understanding at the time he entered his plea.” United

States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992). Accordingly, we “must

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

reasonably understood when he entered his guilty plea.” United States v. Al-Arian,

514 F.3d 1184, 1191 (11th Cir. 2008) (quotation omitted). Moreover, because the

sentencing court is not bound by the parties’ agreements or recommendations,

whether the government breached a plea agreement depends upon the

government’s conduct, not the conduct of the district court. United States v.

Johnson, 132 F.3d 628, 630 (11th Cir. 1998).




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      We “must use objective standards to determine the disputed terms of a plea

agreement.” In re Arnett, 804 F.2d 1200, 1202 (11th Cir. 1986). In interpreting a

plea agreement, “a hyper-technical reading of the written agreement and a rigidly

literal approach in the construction of the language, should not be accepted.”

United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992) (quotation omitted). In

addition, “the written agreement should be viewed ‘against the background of

negotiations’ and should not be read to ‘directly contradic[t] [an] oral

understanding.’”   Id. (alterations in original) (quotation omitted).   “[A] plea

agreement that is ambiguous must be read against the government.” Id. (quotation

omitted). However, when a plea agreement is unambiguous, we will not read into

the agreement terms that were not agreed upon with specificity, even when the

defendant misunderstood the agreement. Al-Arian, 514 F.3d at 1191-93; In re

Grand Jury Proceedings (Perdue), 819 F.2d 984, 986-87 (11th Cir. 1987). “Only

where the language of the agreement is ambiguous, or where government

overreaching is alleged does the court consider parole evidence,” such as a plea

hearing transcript. Raulerson v. United States, 901 F.2d 1009, 1012 (11th Cir.

1990) (involving a habeas corpus petition).

      Here, Lovett argues -- for the first time on appeal -- that the government

breached his plea agreement when it filed its § 851 information four days after the

plea agreement was filed, thereby eliminating the benefit that he expected to


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receive from the government’s agreement to recommend up to a three-level

reduction in his offense level for acceptance of responsibility.           We are

unpersuaded. Among other things, Lovett has not demonstrated error under the

first prong of plain-error review. Like the plea agreements in Al-Arian and Perdue,

Lovett’s plea agreement makes no mention of the government action he now

complains about on appeal -- in this case, the government’s filing of a § 851

information.   In addition, like the plea agreement in Al-Arian, Lovett’s plea

agreement contains an integration clause providing that the written plea agreement

constitutes the entire agreement between the parties and no other promises,

agreements, or representations exist. Thus, there is no ambiguity regarding the §

851 information because there is no mention of it in the plea agreement.

      Instead, the plea agreement unambiguously obligates the government to

recommend up to a three-level downward adjustment in Lovett’s offense level for

acceptance of responsibility in certain circumstances, and Lovett received that

reduction. Moreover, the plea agreement specifically says that Lovett faced a

mandatory-minimum sentence of 20 years’ imprisonment, which would only apply

upon the filing of a § 851 information. Accordingly, because the plea agreement is

unambiguous and contains no prohibition against the government filing a § 851

information, the government did not breach the plea agreement by doing so. In any

event, even if the plea agreement were ambiguous on the issue of whether the


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government would file a § 851 information, and this ambiguity were construed

against the government, Lovett has not shown that any error in filing the

information was plain.

      AFFIRMED.




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