                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            AUGUST 29, 2007
                              No. 07-11407                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 06-00125-CR-ORL-19-KRS

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                   versus

ROLANDER CHARLES WEAVER,
a.k.a. Roe,

                                                   Defendant-Appellant.


                        ________________________

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

                              (August 29, 2007)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Rolander Charles Weaver appeals his 102-month sentence for
conspiring to possess with intent to distribute a substance containing cocaine

hydrochloride. Weaver argues that his sentence should not have been enhanced

based on possession of a firearm, under U.S.S.G. § 2D1.1, because the government

violated his plea agreement by adding the enhancement in retaliation for his

objection to the presentence investigation report (“PSI”). He also argues that he

should not have received the firearm enhancement because the jury did not find

that he had possessed a firearm.

      We review de novo the legal question of whether a presumption of

prosecutorial vindictiveness arises under the Supreme Court’s case law. United

States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006). In addition, we review the

district court’s findings of fact concerning prosecutorial vindictiveness for clear

error. See id.

      In Blackledge v. Perry, the Supreme Court held that it was a violation of the

defendant’s due process rights for the government to bring new and more serious

charges against him after the defendant was granted a trial de novo. 417 U.S. 21,

28-29, 94 S. Ct. 2098, 2103 (1974). The Supreme Court noted, “A person

convicted of an offense is entitled to pursue his statutory right to a trial de novo,

without apprehension that the State will retaliate by substituting a more serious

charge for the original one, thus subjecting him to a significantly increased



                                            2
potential period of incarceration.” Id. at 28, 94 S. Ct. at 2102-03. Therefore, a

prosecutor violates a defendant’s due process rights when additional charges are

added as retaliation “for exercising statutory or constitutional rights.” United

States v. Spence, 719 F.2d 358, 361 (11th Cir. 1983); see Bordenkircher v. Hayes,

434 U.S. 357, 363, 98 S. Ct. 663, 668 (1978). A presumption of vindictiveness

applies when a prosecutor brings more serious charges following the defendant’s

exercise of procedural rights and

      the circumstances demonstrate either actual vindictiveness or a
      realistic fear of vindictiveness. Where the circumstances show only a
      realistic fear of vindictiveness, however, the strength of the
      presumption is determined by a balancing test which weighs the need
      to give defendants freedom to decide whether to appeal against the
      need to give the prosecutors freedom to decide whether to prosecute.

Spence, 719 F.2d at 361-62 (quotation and alteration omitted). Where the

presumption of vindictiveness applies, the government may prove, through

objective evidence, that there was no actual vindictiveness. Id. at 362; Barner, 441

F.3d at 1317 n.6. “Vindictiveness in this context means the desire to punish a

person for exercising his rights.” Barner, 441 F.3d at 1315.

      The Supreme Court also has held that “when 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, 92 S. Ct. 495, 499 (1971). Furthermore, whether the

                                           3
government violated a plea agreement “is judged according to the defendant’s

reasonable understanding at the time he entered his plea.” United States v. Taylor,

77 F.3d 368, 370 (11th Cir. 1996) (quotation omitted). However, we will enforce

any sentence appeal waivers contained within a valid plea agreement. United

States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993).

       As an initial matter, we conclude from the record that the government did

not violate Weaver’s plea agreement. The plea agreement stated that the

government reserved the right to report“relevant factual information, including the

totality of the defendant’s criminal activities,” to the court and the probation office,

and did not indicate that the government agreed not to hold Weaver responsible for

the firearm. Therefore, we conclude that the government did not violate the

agreement by presenting information to the probation office that resulted in

Weaver being held accountable for the firearm. See Taylor, 77 F.3d at 370.

       Weaver’s claim that the government vindictively retaliated against him fails

because he has not shown that the district court clearly erred in finding that he had

not established that the firearm enhancement was applied as a result of

prosecutorial vindictiveness.1 We need not determine whether a presumption of


       1
         Although Weaver’s argument that he should not have received the firearm enhancement
because the government sought the enhancement in order to retaliate against him for exercising
his rights may be barred by his sentence appeal waiver, we decline to address the issue because
the government has not made this argument on appeal. See United States v. Ford, 270 F.3d

                                               4
prosecutorial vindictiveness applies to this case because Weaver’s claim fails even

if a presumption of vindictiveness applies. Here, the government presented

evidence that the results of the search of Weaver’s house were turned over to the

probation office because the probation office requested additional details about the

case in response to Weaver’s objections to the PSI. Thus, the government

presented evidence that the information was not turned over out of vindictiveness.

See Barner, 441 F.3d at 1317 n.6.

       Additionally, we hold that Weaver’s argument that he should not have

received the firearm enhancement because the jury did not find that he had

possessed a firearm is barred by the sentence appeal waiver provision of his plea

agreement. See Bushert, 997 F.2d at 1350-51. Accordingly, we affirm Weaver’s

sentence.

       AFFIRMED.




1346, 1347 (11th Cir. 2001) (stating that this court has a “well established rule . . . that issues
and contentions not timely raised in the briefs are deemed abandoned.”).

                                                   5
