                    Case: 12-12503         Date Filed: 02/21/2013   Page: 1 of 7

                                                                        [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-12503
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 9:11-cr-80168-KLR-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

SAMIR D. HERRERA,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                       (February 21, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
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      Samir D. Herrera appeals his convictions and sentences for: (i) assault on a

federal officer with a firearm, in violation of 18 U.S.C. § 111(a)(1); (ii) using and

carrying a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii); and (iii) possessing a firearm as a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1), 924(e). On appeal, Herrera argues that the government

breached his plea agreement when, because of Herrera’s involvement in a jail fight

on the morning of his plea hearing, the government argued against a three-level

sentencing reduction for acceptance of responsibility. Upon careful review of the

record and the parties’ briefs, we affirm.

                                             I.

      We review de novo a district court’s jurisdiction to re-sentence a defendant.

United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002). A district

court may not modify a term of imprisonment once it has been imposed, except

where expressly permitted by Federal Rule of Criminal Procedure Rule 35 or 18

U.S.C. § 3582, and a district court otherwise lacks inherent power to re-sentence a

defendant. See id. at 1315-16; 18 U.S.C. § 3582(c). The filing of a direct appeal

divests the trial court of jurisdiction to grant a Rule 35(a) motion seeking a

sentence reduction. See United States v. Prows, 888 F.2d 100, 101 (11th Cir.

1989); see also Shewchun v. United States, 797 F.2d 941, 942 (11th Cir. 1986)

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(explaining that, because the filing of a timely notice of appeal divests the trial

court of jurisdiction over the matters at issue in the appeal, the trial court is

without authority to modify a sentence after final judgment during the pendency of

an appeal). Moreover, when a criminal litigant files a notice of appeal after final

judgment, but before the denial of a Rule 35(a) motion to correct a sentence, the

litigant must file a new notice of appeal or amend the prior notice of appeal for

this Court to have jurisdiction to review the denial of the Rule 35(a) motion. See

United States v. Cartwright, 413 F.3d 1295, 1300 (11th Cir. 2005).

       We generally review de novo whether the government breached a plea

agreement. See United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.

2008). However, where a defendant raises an objection for the first time in a Rule

35(a) motion, and does not appeal the denial of that motion, our review is limited

to plain error. Cartwright, 413 F.3d at 1300. To establish plain error, a defendant

must demonstrate: (i) error; (ii) that is plain; (iii) that affects substantial rights; and

(iv) that seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See id. An error is plain if it is “obvious and clear under current

law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006). Credibility

determinations are within the province of the fact-finder, and we will defer to the

district court’s determinations unless its understanding of the facts is contrary to

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the laws of nature or is so inconsistent or improbable on its face that no reasonable

fact-finder could accept it. United States v. Ramirez-Chilel, 289 F.3d 744, 749

(11th Cir. 2002).

                                         II.

      Herrera argues that the government breached a plea agreement it entered

with him by not recommending that the district court reduce the guideline range by

three points for Herrara’s acceptance of responsibility. The plea agreement

provided that the government would recommend a reduction for acceptance of

responsibility, but this recommendation was conditional:

      The United States, however, will not be required to make this motion
      and theses [sic] recommendations if the defendant: (1) fails or refuses
      to make a full, accurate and complete disclosure to the probation
      office of the circumstances surrounding the relevant offense conduct;
      (2) is found to have misrepresented facts to the government prior to
      entering into this plea agreement; or (3) commits any misconduct
      after entering into this plea agreement, including but not limited to
      committing a state of [sic] federal offense, violating any term of
      release, or making false statements or misrepresentations to any
      governmental entity or official. Dkt. 25, ¶ 6.

      On the morning of his guilty plea, January 25, 2012, Herrera was involved

in an incident with another inmate at the Palm Beach County Jail. Herrera struck

the inmate twice, leaving a gash on the left side of the inmate’s head and severely

injuring the inmate’s ear. An investigator for the Federal Public Defender testified



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that he had interviewed two other inmates who stated that the injured inmate (and

not Herrera) was the initial aggressor. The government, however, offered the

testimony of Deputy Sheriff Guy Mondesir, who observed the event and testified

that this was an unprovoked attack by Herrera and that Herrera was the initial

aggressor.

      After hearing testimony from both sides, the district court accepted the

testimony of Deputy Sheriff Mondesir. Accordingly, the district court did not

award a three level acceptance-of-responsibility reduction.

                                        III.

      We do not have jurisdiction to consider the district court’s denial of

Herrera’s post-sentencing motions. Although Herrera objected to the lack of an

acceptance-of-responsibility reduction in his presentence investigation report

(“PSI”), both before and during his sentencing, he did not argue that the

government breached his plea agreement until after the district court had imposed

judgment. Because his notice of appeal only sought to appeal the court’s

judgment, and he did not file a new notice of appeal or amend his prior notice of

appeal after the district court denied his post-sentencing motions, we do not have

jurisdiction over the district court’s denial of those motions. See Cartwright, 413

F.3d at 1300. Similarly, because Herrera neither raised the government’s alleged

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breach before the district court entered judgment nor appealed the denial of his

post-sentencing motions, the question of whether the government breached his

plea agreement will be reviewed on appeal for plain error. See id.

        Herrera cannot establish error, let alone plain error, with respect to the

government’s alleged breach. The district court concluded that Herrera’s

representations that he had not been the aggressor in the jail fight, both in his PSI

objections and through counsel at his plea and sentencing hearings, were

inconsistent with the sentencing testimony of Deputy Sheriff Mondesir, and

therefore these representations were not credible. The district court found that

Deputy Sheriff Mondesir, who had given sworn testimony subject to cross-

examination, had no reason to be partial and no reason not to testify as to exactly

what he observed. Alternatively, Herrera only offered hearsay testimony of what

other inmates apparently told an investigator.1 Herrera has pointed to nothing in

the record suggesting that the district court’s credibility determination was so

inconsistent or improbable that no reasonable fact-finder could accept it. See

Ramirez-Chilel, 289 F.3d at 749.




        1
                  Neither Herrera nor the injured inmate testified about this incident before the
district court.

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      Herrera does not dispute that his attorney’s representations with respect to

the jail fight reflected his position on what occurred, and he has not submitted any

authority suggesting that his attorney’s representations should not be attributed to

him. Herrera also does not dispute the government’s contention that Herrera’s

attorney told government attorneys prior to the plea hearing that Herrera was not

the initial aggressor in the jail fight. See Dkt. 44 at 5. The plea agreement

specifically indicates that the government was not required to recommend an

acceptance-of-responsibility reduction if Herrera was “found to have

misrepresented facts to the government prior to entering into this plea agreement.”

In light of the district court’s credibility determination, the government was

released from its obligation to recommend an acceptance-of-responsibility

reduction because Herrera in fact misrepresented facts to the government prior to

entering into the plea agreement.

                                         IV.

      After thorough review of the record and the parties’ briefs, we affirm.

      AFFIRMED.




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