             Case: 13-12392    Date Filed: 01/13/2014   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-12392
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 4:12-cr-10009-JEM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

CLEON MAJOR,

                                                            Defendant-Appellant.

                          ________________________

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

                               (January 13, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Cleon Major appeals his conviction and sentence of 110 months of

imprisonment following his plea of guilty to defrauding the Gulf Coast Claims
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Facility by means of wire communications. 18 U.S.C. §§ 2, 1343. Major argues

that the United States violated his plea agreement by failing to recommend that he

receive a three-level reduction for acceptance of responsibility. See United States

Sentencing Guidelines Manual § 3E1.1 (Nov. 2012). Major also argues that his

sentence is unreasonable. We affirm.

                                I. BACKGROUND

       Major entered a written agreement to plead guilty to one count of wire

fraud, see 18 U.S.C. § 2, 1343, in exchange for the dismissal of 11 charges for wire

fraud and access device fraud. The United States “agree[d] that it would

recommend at sentencing that the court reduce the sentencing guideline level

applicable to [Major’s] offense . . . based upon [his] recognition and affirmative

and timely acceptance of personal responsibility.” But the United States was

relieved of its obligation to make the sentencing recommendation if Major “fail[ed]

or refuse[d] to make full, accurate, and complete disclosure to the Probation Office

of the circumstances surrounding the relevant offense conduct”; “misrepresented

facts to the government prior to entering [the] plea agreement”; or “commit[ted]

any misconduct after entering into [the] plea agreement.” Major agreed both to

waive his right “to appeal any sentence imposed . . . or to appeal the manner in

which the sentence was imposed, unless the sentence exceed[ed] the maximum

permitted by statute or [was] the result of an upward departure from the advisory


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guideline range that the court establishe[d] at sentencing” and “to request that the

district court enter a specific finding that the . . . waiver of his right to appeal the

sentence imposed . . . was knowing and voluntary.” He also acknowledged that the

“appeal waiver include[d] a waiver of the right to appeal the sentence on the

ground that under the advisory Sentencing Guidelines range determined by the

court, the sentence imposed in [his] case [was] not a reasonable sentence.”

       During the change of plea hearing, the district court questioned Major about

the waiver of his right to appeal his sentence. The district court asked Major,

“[D]o you understand that you’re waiving a very significant right in your right to

appeal in this case?,” to which Major responded, “Yes, I am.” The district court

then asked Major if he “underst[oo]d that [he was] pretty much giving up any right

to appeal []his case unless [he received] an illegal sentence,” and Major replied,

“Yes sir, I do.” After the district court confirmed that Major had discussed the

appeal waiver with his attorney and that counsel was confident that Major

understood his rights, the district court accepted Major’s plea of guilty.

       Major’s presentence investigation report provided a total offense level of 25

that included a two-level enhancement because he obstructed justice by tampering

with a witness, see U.S.S.G. § 3C1.1. The report did not recommend that Major

receive a reduction for acceptance of responsibility because it was inconsistent

with his obstruction of justice. See id. § 3E1.1 n.4. With a criminal history


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category of VI, the report provided an advisory guidelines range between 110 and

137 months of imprisonment.

      Major and the United States disagreed about Major’s right to a reduction for

acceptance of responsibility. Major objected to his presentence report and argued

that he was entitled to the three-level reduction and that he was not responsible for

losses attributable to his coconspirators. He contended that he had accepted

responsibility for his conduct and had not violated the conditions of his plea

agreement. The United States responded that Major was not entitled to the three-

level reduction because “it [was] apparent from [Major’s] instant effort and the

PSR that he [had] failed to abide by the terms of his Plea Agreement . . . by ‘(1)

failing or refusing to make [a] full, accurate, and complete disclosure to the

Probation Office’” and “[t]hat failure . . . relieve[d] the United States of any

obligation to recommend any reduction in his sentencing guideline predicated on

Section 3E1.1.” In reply, Major argued that “the Government [was] bound to

recommend that [he] receive” the reduction and he had satisfied the conditions for

the reduction because “he [had] consulted with Cherie Audette, [a] United States

Probation Officer” to prepare the presentence report and had “made all of the

necessary disclosures to her in order to receive an adjustment for acceptance of

responsibility.”




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      The Probation Office responded to Major’s objections. In a second

addendum to the presentence report, Ms. Audette stated that Major’s

“representation of the instant offense was not included” in the report because

“Major[] declined to make any post arrest statements to the agents or the

government.” Audette offered to revise the presentence report “after sentencing to

include Major’s statements” if the district court “deem[ed] [the] information . . .

relevant.”

      At the sentencing hearing, the district court directed Major to raise all

“issues that remain outstanding” or they would be treated as “waiv[ed].” Major

argued for a reduction for acceptance of responsibility, but he did not argue that the

United States violated the plea agreement. The district court denied Major’s

request for the three-level reduction on the ground that his obstruction of justice

was inconsistent with his acceptance of responsibility. See U.S.S.G. § 3E1.1 n.4.

The district court “considered the statements of all the parties, the Presentence

Report which contains the advisory guidelines[,] and the statutory factors” and

imposed a sentence at the low end of Major’s advisory guideline range.

                         II. STANDARDS OF REVIEW

      We apply two standards of review in this appeal. Because Major failed to

object when given the opportunity during his sentencing hearing, we review his

argument about the alleged breach of the plea agreement for plain error. See


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Puckett v. United States, 556 U.S. 129, 134–36, 129 S. Ct. 1423, 1428–29 (2009).

Under that standard, Major must prove that there is error that is plain and that

violates his substantial rights. Id. at 135, 129 S. Ct. at 1429. We review de novo

the validity of Major’s waiver of his right to appeal his sentence. See United

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).

                                 III. DISCUSSION

      Major argues that the United States violated its plea agreement by refusing

to recommend that he receive a reduction for acceptance of responsibility and that

his sentence is procedurally and substantively unreasonable. The United States

responds, in relevant part, that Major cannot prove that his substantial rights were

affected by the alleged breach of his plea agreement and that Major waived the

right to appeal the reasonableness of his sentence. We agree with the United

States.

      Even if we were to assume that the United States breached the plea

agreement by refusing to recommend that Major receive the three-level reduction,

Major cannot prove that the breach prejudiced his substantial rights. See Puckett,

556 U.S. at 135, 129 S. Ct. at 1429. For an error to affect substantial rights,” a

defendant must prove that the error “affected the outcome of the district court

proceedings” to the point that it “undermine[s] confidence in the outcome.” United

States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (internal quotation


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marks and citations omitted). The United States refused to recommend a reduction

for acceptance of responsibility on the ground that Major failed to make a complete

disclosure of his involvement in the offense, but the district court refused to award

Major a reduction for acceptance of responsibility because it was inconsistent with

his obstruction of justice. See U.S.S.G. § 3E1.1 n.4. The alleged breach by the

United States did not affect the decision of the district court.

      Major’s challenges to his sentence are barred by the appeal waiver in his

plea agreement. In his plea agreement, Major agreed to “waive[] [his] right to

appeal the sentence on the ground that . . . [it was] not a reasonable sentence.” The

district court discussed the waiver with Major during his change of plea hearing,

and Major acknowledged at that hearing that he had agreed to waive his right to

appeal his sentence. See Johnson, 541 F.3d at 1066. Major knowingly and

voluntarily waived the right to appeal the reasonableness of his sentence.

                                 IV. CONCLUSION

      We AFFIRM Major’s conviction and sentence.




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