                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-11728                ELEVENTH CIRCUIT
                                                          SEPTEMBER 10, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 06-20063-CR-KMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MARTIN EUGENE HABER,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                             (September 10, 2009)


Before DUBINA, Chief Judge, BIRCH and HULL, Circuit Judges.

PER CURIAM:

     Appellant Martin Eugene Haber, appearing pro se, appeals his 78-month
sentence for mail and wire fraud. The challenged sentence was the result of a

resentencing ordered by this court in Haber’s prior appeal. See United States v.

Haber, 299 Fed. Appx. 865 (11th Cir. 2008) (“Haber I”).

      Haber first argues that the government breached the plea agreement at the

resentencing by failing to recommend a three-level reduction for acceptance of

responsibility and by failing to recommend a sentence at the low end of the

guideline range. Significantly, Haber does not argue that the district court erred in

finding that he engaged in misconduct post-agreement, and does not dispute that

the plea agreement expressly relieves the government of these two

recommendation requirements where post-agreement misconduct is shown.

Rather, he argues that the government should have been estopped from introducing

evidence of his misconduct because the misconduct was actually or constructively

known to the government before the Rule 11 plea colloquy.

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

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

Cir. 2008), cert. denied, 129 S. Ct. 1668 (2009). The question of breach “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). “[T]he

Government breaches a plea agreement where the Government introduces or



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supports facts at sentencing that contradict the facts stipulated to in the agreement.”

De La Garza, 516 F.3d at 1270.

      Under the express terms of the plea agreement, the government was not

required to recommend an acceptance of responsibility reduction or a sentence at

the low end of the guideline range if Haber engaged in illegal activities or other

misconduct after the date of the plea agreement. The agreement contains no

requirement that the government disclose to Haber its discovery of any post-

agreement misconduct by him, or disclose in advance its intention not to make any

particular recommendation at sentencing as a result of that misconduct, and Haber

cites no such contractual duty in his brief. Because the plea agreement is silent on

this issue, we conclude that Haber’s estoppel argument is without foundation.

      Haber next argues that the government breached the plea agreement by

failing to recommend a sentence within the guideline range at the resentencing.

Again, whether the government breached a plea agreement is a question of law

which we typically review de novo. Id. at 1269. Although, where, as here, no

contemporaneous objection was made regarding the alleged breach, we review for

plain error. Id. “Under plain error review, there must be (1) an error, (2) that is

plain, (3) that affects the defendant's substantial rights, and (4) that seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.



                                            3
“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 court

proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.

1770, 1778 (1993)). The defendant has the burden of persuasion as to prejudice.

Id.; see also Puckett v. United States, __ U.S. __, 129 S. Ct. 1423, 1428-29, 1432-

34 and n.4 (2009) (applying plain error review to forfeited claims about an alleged

government breach of a plea agreement, and clarifying that question of prejudice

does not relate to whether defendant would have entered into the plea, but rather,

whether his sentence was affected).

      The plea agreement contained a number of stipulations, one of which

obligated the government and Haber to jointly recommend that the court find the

loss resulting from the offense was more than $400,000 and less than $1,000,000.

Haber, however, took the position at resentencing that the court should

independently determine the loss amount. Haber argued that the “amounts listed

by the Government weren’t the loss amounts” and put on evidence that the amount

of loss was less than $400,000. (Resentencing Transcript, R. 9-153 at 32-36.)

When Haber failed to recommend that the court find the loss in accordance with

the plea agreement, the government was no longer obligated by the plea agreement

to recommend a guideline-range sentence. See Puckett, 129 S. Ct. at 1432 n.2



                                           4
(government’s obligations under plea agreement may be excused where the

defendant breaches the agreement).

      Even to the extent the government’s failure to recommend a guideline

sentence might be deemed a breach of the plea agreement, we conclude that Haber

has not demonstrated plain error. Puckett establishes that where the government

has breached a plea agreement, a defendant can only show plain error by

demonstrating that his sentence was affected by the breach. 129 S. Ct. at 1432-33

(“The defendant whose plea agreement has been broken by the government will

not always be able to show prejudice, either because he obtained the benefits

contemplated by the deal anyway . . . or because he likely would not have obtained

those benefits in any event . . . .”). Here, Haber received a sentence within the

guideline range notwithstanding the government’s alleged breach regarding a

within-guideline recommendation, so there was no prejudice.

      For the aforementioned reasons, we affirm Haber’s sentence.

      AFFIRMED.




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