           Case: 16-17146    Date Filed: 11/17/2017   Page: 1 of 6


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17146
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:13-cr-00324-JSM-TGW-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                   versus

MICHAEL LERMOS-HERNANDEZ,

                                                         Defendant - Appellant.

                      ________________________

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

                            (November 17, 2017)



Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:
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       Michael Lermos-Hernandez appeals his 199-month sentence imposed after

he agreed to plead guilty to conspiracy to commit bank fraud 1 and aggravated

identity theft. 2 He argues on appeal that the government breached the plea

agreement because it did not consider whether his cooperation efforts qualified as

substantial assistance that would merit the filing of a motion to sentence him below

the guideline range. 3 His claim is based on the government’s statement at

sentencing that the cooperation provision was included at Lermos-Hernandez’s

request and “not because the government thought it was viable.”

       The claim that the government breached the plea agreement is unsupported

by any evidence in the record. The eight-word phrase that provides the entire basis

for Lermos-Hernandez’s argument—“not because the government thought it was

viable”—does not bolster his claim. In fact, the record supports the opposite

conclusion that the government did consider his cooperation efforts. Therefore,

after thorough review, we affirm.

                                              I.

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

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

must abide by a material promise in a plea agreement that induces a defendant to


1
  18 U.S.C. §§ 1344, 1349.
2
  Id. § 1028A.
3
  See id. § 3553(e); U.S. Sentencing Guidelines Manual § 5K1.1.
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plead guilty. United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). If the

government fails to perform a promise on which the plea was based, it breaches the

agreement. United States v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016).

      Whether the government breached 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). We apply an objective

standard to determine whether the government’s actions comport with “the

defendant’s understanding of the plea agreement.” Hunter, 835 F.3d at 1324.

                                         II.

      Lermos-Hernandez was indicted and arrested for theft and credit card fraud

in 2013. He promised the government repeatedly that he would cooperate and

provide information related to major drug cases if he were released on bond. In

October 2013, he was released on bond. In November, however, Lermos-

Hernandez cut off his ankle monitoring bracelet and absconded from his home. He

went on to commit more crimes of theft and fraud involving more than $100,000

before he was re-arrested about thirteen months later in December 2014.

      In March 2016, Lermos-Hernandez pleaded guilty to conspiracy to commit

bank fraud and aggravated identity theft. In his plea agreement, Lermos-

Hernandez agreed to “cooperate fully with the United States in the investigation

and prosecution of other persons” by providing “a full and complete disclosure of

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all relevant information.” If he completed his cooperation before his sentencing

hearing, the government agreed to consider whether it qualified as substantial

assistance.4 At his plea hearing, the magistrate judge emphasized to Lermos-

Hernandez that the government was merely agreeing to consider filing the motion

and not promising to do so. Lermos-Hernandez indicated that he understood this.

        The government did not file a motion to lower Lermos-Hernandez’s

sentence because it determined that his cooperation was not substantial assistance.

The government claimed that Lermos-Hernandez’s cooperation was an attempt to

“manipulate the United States” and use the “mirage of cooperation” to his

advantage. Lermos-Hernandez never told “the complete story,” instead only

telling the government information it already knew. In fact, one of the co-

conspirators that Lermos-Hernandez agreed to provide information about was

already known to the government because he had first assisted the government in

apprehending Lermos-Hernandez. But when asked about the unknown people who

helped him break into a mall, Lermos-Hernandez refused to provide their names.

       At sentencing, Lermos-Hernandez argued that his cooperation should be

reflected in a sentence below the guideline range. The government responded by


4
 If the government determined Lermos-Hernandez’s cooperation constituted substantial
assistance, it could file a motion recommending either a downward departure from his sentencing
guideline range, U.S. Sentencing Guidelines Manual § 5K1.1, or the imposition of a sentence
below a statutory minimum. 18 U.S.C. § 3553(e). Notably, both § 5K1.1 and § 3553(e) give the
government “a power, not a duty, to file a motion when the defendant has substantially assisted.”
Wade v. United States, 504 U.S. 181, 185, 112 S. Ct. 1840, 1843 (1992).
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describing the circumstances of his cooperation and stating that the cooperation

provision in the plea agreement “was provided because [Lermos-Hernandez] asked

for it, not because the government thought it was viable.” The District Court

sentenced Lermos-Hernandez to 199 months, which it acknowledged was at the

“high end” of the guideline range. He timely appealed.

                                        III.

      On appeal, Lermos-Hernandez argues the government breached the plea

agreement because its statement that the cooperation provision was included

because he asked for it, “not because the government thought it was viable,” shows

that the government did not consider whether he substantially assisted. There is no

other support for this contention. Indeed, there is evidence that the government did

in fact consider whether Lermos-Hernandez’s cooperative efforts constituted

substantial assistance. Therefore, Lermos-Hernandez’s argument must fail.

      Lermos-Hernandez’s contention is not supported by the government’s

statement in the first place. The government stated the cooperation provision was

included in the plea agreement because Lermos-Hernandez asked for it. The

phrase “not because the government thought it was viable” explains that its

viability was not the reason for including the provision. It does nothing to explain

whether or not the government thought it was viable. Without this, Lermos-




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Hernandez can offer no evidence showing the government thought the cooperation

provision was not viable at the time of the plea agreement.

      Even assuming arguendo that the government believed the provision to be

inviable, there still is no evidence to show that the government refused to consider

whether Lermos-Hernandez’s cooperation efforts constituted substantial assistance.

On the contrary, the evidence shows that the government did actually consider this.

At the sentencing hearing, the government described Lermos-Hernandez’s

cooperation efforts in detail, showing that he only offered information already

known to the government while concealing information that would have assisted.

The description of his cooperation efforts and the evaluation of their quality

suggest that their merits were considered by the government.

      No evidence supports Lermos-Hernandez’s contention that the government

breached his plea agreement. The single spoken clause he latches onto in support

of his argument—“not because the government believed [the cooperation

provision] was viable”—does not help. The record indicates that the government

actually did consider whether Lermos-Hernandez’s cooperation constituted

substantial assistance. The government concluded that it did not, and accordingly

it did not file a motion to support reducing his sentence. Therefore, the plea

agreement was not breached. We affirm.

      AFFIRMED.

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