                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0396n.06

                                            No. 14-1246

                           UNITED STATES COURT OF APPEALS                              FILED
                                FOR THE SIXTH CIRCUIT                            Jun 02, 2015
                                                                             DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )     ON APPEAL FROM THE
                                                          )     UNITED STATES DISTRICT
KYRECE TRAVONNE SMITH,                                    )     COURT FOR THE WESTERN
                                                          )     DISTRICT OF MICHIGAN
       Defendant-Appellant.                               )
                                                          )


BEFORE:        BOGGS and KETHLEDGE, Circuit Judges; and HELMICK, District Judge.*

       BOGGS, Circuit Judge. On July 23, 2013, Kyrece Smith pled guilty to conspiracy to

distribute and possess with intent to distribute cocaine base. In his plea agreement with the

government, the parties stipulated that Smith was responsible for the distribution of 106.26

grams of cocaine base and approximately 55 pounds of marijuana. The presentence report

prepared by the United States Probation Office set out this stipulation, but recommended that

Smith be sentenced based on a larger quantity of drugs. Without objection from the government

or Smith, the district court adopted the recommendation from the presentence report.

       On appeal, Smith argues that the government violated the plea agreement by failing to

object to the presentence report’s recommendation that he be sentenced based on a larger

quantity of drugs than stipulated to in the agreement. We hold that the district court’s sentencing

did not result in plain error and therefore affirm.

*
 The Honorable Jeffrey J. Helmick, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 14-1246
USA v. Smith
                                                I

       On April 1, 2013, Defendant-Appellant Kyrece Smith was arrested along with his brother

after attempting to sell 106.26 grams of cocaine base to a confidential informant. On May 22,

2013, a federal grand jury indicted Smith on one count of conspiracy to distribute cocaine base,

in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(iii), and one count of possession

with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii)

and 18 U.S.C. § 2. On July 22, 2013, Smith entered into a written plea agreement with the

government. In the agreement, Smith agreed to plead guilty to the first count in the indictment,

which charged him with conspiracy to distribute and possess with intent to distribute more than

28 grams of cocaine base.

                                                A

       Paragraph 4 of the plea agreement, which sets out various stipulations of fact and law

between the parties, describes Smith’s involvement in a pre-existing conspiracy to sell controlled

substances. The agreement states that Smith disclosed in a proffer with the government that he

conspired to obtain approximately one kilogram of cocaine per month from May 2012 through

April 2013, convert it to cocaine base, and sell it. The government stipulated that “[t]his

information concerning cocaine and cocaine base is proffer-protected and cannot be used to

compute the Sentencing Guidelines in this case pursuant to the [relevant] proffer agreement.”

Most important for this appeal, the agreement also provides that: “For purposes of computing the

Sentencing Guidelines in this case, the parties agree that [Smith] was responsible for the

distribution of 106.26 grams of cocaine base and approximately 55 pounds of marijuana.”




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No. 14-1246
USA v. Smith
       The plea agreement goes on to state that Smith “understands that the Court, with the aid

of the presentence report, will determine the facts and calculations relevant to sentencing” after

consulting the United States Sentencing Guidelines. Moreover, it states that:

               [Smith] understands that the Court is not a party to this agreement
               and is under no obligation to accept any recommendation by the
               U.S. Attorney’s Office or the parties regarding the sentence to be
               imposed. [Smith] further understands that, even if the Court
               ignores such a recommendation or imposes any sentence up to the
               maximum established by statute, the Defendant cannot, for that
               reason, withdraw his guilty plea, and he will remain bound to
               fulfill all his obligations under this agreement.           [Smith]
               understands that no one—not the prosecutor, [Smith’s] attorney, or
               the Court—can make a binding prediction or promise regarding the
               sentence [Smith] will receive, except that it will be within the
               statutory maximum.

       In exchange for Smith’s plea and cooperation, the government specifically agreed to the

following concessions: (1) to bring no further charges against Smith “for the distribution of

cocaine base or possession of a firearm in furtherance of the offense of conviction”; (2) to

dismiss other counts of the indictment as they applied to Smith; (3) not to file a supplemental

information under 21 U.S.C. § 851 to increase the penalty for the offense of conviction; (4) not

to oppose Smith’s request for a two-level reduction of his offense level for acceptance of

responsibility, absent uncooperative conduct by Smith; and (5) not to use the information

provided through Smith’s cooperation to enhance his sentence.

                                                B

       Smith pled guilty on July 23, 2013. At the plea hearing, the magistrate judge informed

Smith about the role of the sentencing guidelines and explained that the district judge could

choose a sentence within the recommended range “but is not required to.” The magistrate judge

stated that an advisory guidelines range would be “calculated by the [United States] Probation

Office when it prepares the presentence report,” and while Smith’s attorney would be able to

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No. 14-1246
USA v. Smith
give “a pretty good idea” of what the recommended range would be, he could not “guarantee . . .

that his calculations are the final calculations.” The magistrate judge explained that the parties

could object to the Probation Office’s calculations if they disagreed with them, and that failure to

so object would constitute waiver. Throughout the plea hearing, the magistrate judge reiterated

that the district court was “not a party to” the plea agreement and was not “bound by it,” and that

the court was not bound by any recommendation as to sentencing. The government attorney also

noted that the plea agreement, which contained all of the promises made by the government, “is

limited to the parties,” and that there was “no agreement as to the final guideline range.”

Defense counsel concurred in this explanation.

         Regarding the factual basis for the plea, the magistrate judge noted that the district court

was “free to adopt . . . all of the factual stipulations in paragraph 4,” subject to the agreement’s

terms, as well as Smith’s statements at the plea hearing. The government attorney noted an

“unusual” aspect of the plea agreement whereby “some of the defendant’s proffered

information,” which “may not [be] consider[ed]” by the court “for purposes of calculating the

sentencing guidelines,” can be considered “for purposes of establishing the factual basis for the

plea.”

                                                  C

         Following the plea hearing, the Probation Office prepared a presentence report (“PSR”),

which noted that “the parties agree the defendant was responsible for distributing 106.26 grams

of crack cocaine and 55 pounds of marijuana.” The PSR, however, calculated Smith’s guidelines

range using specific offense-conduct information. Specifically, the PSR explained that:

                Mr. Smith’s plea agreement stipulates his involvement in 106.26
                grams of crack cocaine, distributed on April 1, 2013, and 55
                pounds (24,948 grams) of marijuana under relevant conduct. . . .
                Notwithstanding, based on the offense conduct information, a total

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No. 14-1246
USA v. Smith
               of 230.93 grams of crack cocaine and 55 pounds of marijuana was
               attributed to Mr. Smith. This produces a marijuana equivalency of
               849.59 kilograms.

The PSR determined this drug quantity based on the amount of crack cocaine recovered from

Smith’s shared residence and the amounts sold on Smith’s behalf by his brother to a confidential

informant in January and February 2013, as well as the 106.26 grams of crack cocaine and 55

pounds of marijuana noted in the plea agreement. The PSR explained that these amounts are

“consistent with the unprotected admissions” by Smith’s brother, are attributable to Smith, and

are “not protected” by a proffer. By contrast, the PSR noted that the information regarding the

one-kilogram-per-month of cocaine that Smith conspired to obtain and convert to cocaine base

from May 2012 through April 2013 “is protected and has not been used in the guideline

computations.”

       Using the larger drug quantity, the PSR determined the advisory guidelines range to be

100 to 125 months. Neither the government nor defense counsel objected to the PSR.

                                                D

       During this time, Smith purported to cooperate with government officials in a drug

investigation. In February 2014, however, investigators determined that Smith warned one of the

targets of the investigation and colluded with him to steal the money that the government

planned to use in a controlled drug buy. Smith then fled on bond, and, on February 12, Smith

“purposely rammed police vehicles” with his car and “resisted arrest causing injury to an officer”

while the fugitive task force was apprehending him.

       The district judge held Smith’s sentencing hearing on February 20, 2014. On the basis of

Smith’s conduct subsequent to his guilty plea, the judge granted the government’s motion to

withdraw the substantial-assistance motion it had previously filed pursuant to U.S.S.G. § 5K1.1;



                                               -5-
No. 14-1246
USA v. Smith
denied a sentencing reduction under § 3E1.1(a) for acceptance of responsibility; and applied a

two-level enhancement for obstruction of justice under § 3C1.1. This resulted in an applicable

guidelines range of 168 to 210 months. Neither the government nor defense counsel objected to

any part of the PSR or the court’s guidelines calculation regarding the applicable drug quantity.

Believing that “[a] sentence towards the upper end of the advisory guideline range” was

“appropriate,” the district judge sentenced Smith to 204 months in prison.

       On appeal, Smith asserts that the government violated the terms of the plea agreement by

not objecting to the discrepancy between the drug quantities set out in the plea agreement and the

PSR. Appellant Br. 8.

                                                II

       We normally review de novo whether the government’s conduct violated a plea

agreement. United States v. Fields, 763 F.3d 443, 453 (6th Cir. 2014). However, “[w]hen a

defendant fails to object to the government allegedly violating his plea agreement, we must

review the alleged violation for plain error alone.” United States v. Merlo, 464 Fed. App’x 518,

522 (6th Cir. 2012). To demonstrate plain error, a defendant must show “(1) error (2) that ‘was

obvious or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the

fairness, integrity, or public reputation of the judicial proceedings.’” United States v. Vonner,

516 F.3d 382, 386 (6th Cir. 2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445,

459 (6th Cir. 2006)).

                                               III

       Pursuant to the plea agreement in this case, the prosecutor agreed that for the purposes of

computing the applicable guidelines range, Smith “was responsible for the distribution of 106.26

grams of cocaine base and approximately 55 pounds of marijuana.” Smith asserts that this



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No. 14-1246
USA v. Smith
stipulation imposed upon the prosecutor a duty to object to the PSR’s use of a larger drug

quantity when calculating Smith’s guidelines range. He contends that the prosecutor violated

this duty when he failed to “ask for a deletion” of “the additional drug amounts which were in

excess of the stipulations” and thus “tacitly” approved “probation’s position regarding the

amount of drugs involved in the offense.” Appellant Reply Br. 2.

                                                A

          In analyzing a claimed breach of a plea agreement, this court considers “what the

defendant reasonably understood when he entered into the agreement.” Fields, 763 F.3d at 453

(internal quotation marks and citation omitted).      “[T]he most persuasive evidence” of the

defendant’s bargain “is found in the plain language” of the agreement. United States v. Phibbs,

999 F.2d 1053, 1081 (6th Cir. 1993).          In consideration of the substantial sacrifice of

constitutional rights that results from a defendant’s decision to enter into a plea agreement, any

“significant . . . promise or agreement” made by the prosecutor in connection therewith “must be

fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). However, unless committed to do

so under the agreement’s specific terms, a prosecutor is not required to support “enthusiastically”

every recommendation in a plea agreement. United States v. Benchimol, 471 U.S. 453, 455

(1985).

          Here, Smith points to no language in the plea agreement evincing any promise by the

prosecutor to object to the Probation Office’s PSR. Indeed, the plea agreement explicitly stated

that it was “limited to the U.S. Attorney’s Office for the Western District of Michigan, and

cannot bind any other federal, state or local prosecuting, administrative or regulatory authority.”

Cf. United States v. Garavaglia, 1999 WL 220125, at *3 (6th Cir. Apr. 6, 1999) (finding no

breach where the probation office suggested the application of a guidelines provision not



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No. 14-1246
USA v. Smith
contained in the plea agreement, where the agreement stated that it “does not bind or obligate

governmental entities other than the United States Attorney’s Office”).          The district court,

without objection from either party, ultimately relied on the drug quantity set out in the PSR, and

not the amount stipulated in the plea agreement. However, Smith was on notice that “the Court

[was] not a party to [the plea] agreement and [was] under no obligation to accept any

recommendation by the U.S. Attorney’s Office or the parties regarding the sentence to be

imposed.”1

       Smith’s argument that the government breached an implicit promise to object to the PSR

has been rejected by this and other circuits under similar circumstances. Recently, in United

States v. Climer, we considered a plea agreement that included a stipulation that the prosecutor

would recommend a minimal-participant reduction. 591 F. App’x 403 (6th Cir. 2014). The

guidelines calculation recommended in the PSR, however, did not include any such reduction;

rather, the reduction was included only in a separate section presenting an alternative guidelines

range based on the plea agreement’s terms. Id. at 406. Like Smith here, the defendant in Climer

argued that the prosecutor “had a duty to object” to the PSR’s guidelines calculation to the extent

it differed from the plea agreement. Ibid. In rejecting this argument, we stressed that there is

“no law from this circuit that requires the Government to object to a probation officer’s factual

determinations in a PSR,” and that the specific plea agreement did not itself impose that

requirement on the prosecutor. Ibid. That the PSR in Climer contained an alternative guidelines




1
  Indeed, the sentencing guidelines’ policy statement regarding plea agreements notes that “the
court is not bound by the stipulation[s]” set out in a plea agreement’s “written stipulation of facts
relevant to sentencing,” “but may with the aid of the presentence report, determine the facts
relevant to sentencing.” U.S.S.G. § 6B1.4(a), (d) (emphasis added); see also § 1B1.3 (a court
can consider “all acts and omissions committed . . . by the defendant . . . during the commission
of the offense of conviction” to determine the base offense level).
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No. 14-1246
USA v. Smith
range incorporating the plea agreement’s terms does not materially distinguish it from the PSR at

issue here, which specifically noted the parties’ stipulation regarding drug quantity.

       In a closely analogous case, the Fifth Circuit considered a defendant’s argument that the

government breached a plea agreement stipulating that he should be held responsible for only 16

kilograms of cocaine for sentencing purposes. United States v. Nunez, 539 F. App’x 502 (5th

Cir. 2013). The government did not object to the PSR, which asserted that the defendant was

responsible for 392.7 kilograms of cocaine, or to the district court’s determination that the

defendant was responsible for 92.7 kilograms. Id. at 503–04. Applying plain-error review, the

Fifth Circuit stressed that there was “no language in the agreement requiring the Government to

object to a determination by the probation officer or the court that [the defendant] was

responsible for an amount of cocaine greater than” set out in the plea agreement. Ibid. The court

noted that—like Smith’s agreement in this case—the relevant plea agreement stated that the

sentencing court was not bound by the parties’ stipulations and was authorized to impose any

sentence up to the statutory maximum. Id. at 503. Thus, the defendant could not show “clear or

obvious error with respect to his contention that the Government’s silence was a breach of the

agreement.” Id. at 504.

       Additional caselaw from other circuits confirms that courts are hesitant to impose

obligations on the government to object to a PSR when such objections are not compelled by the

plain text of a plea agreement.

       In United States v. Riviera-Solona, the Eleventh Circuit determined that the government

did not violate a stipulation in a plea agreement that there was insufficient evidence to support a

firearms enhancement when it failed to object to the PSR’s recommendation that the

enhancement be applied. 531 F. App’x 986, 988, 991 (11th Cir. 2013). The court stressed that



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No. 14-1246
USA v. Smith
“[t]he express terms of the plea agreement did not obligate the government to do anything with

respect to” the enhancement, and that the plea agreement established that the sentencing court

“was not bound by the parties’ stipulation.” Id. at 991. Similar to Smith here, the defendant in

Riviera-Solona failed to “cite any authority establishing that the government’s promise not to

recommend a particular sentencing enhancement also includes a promise to affirmatively object

to that sentencing enhancement if the probation officer includes it in the [PSR’s] calculations or

if the district court imposes it.” Id. at 992.

        The Second Circuit in United States v. Lawlor rejected a defendant’s argument that the

government was obligated to object to a PSR that recommended that the defendant’s base

offense level be calculated under a different guidelines provision than was stipulated to in the

plea agreement. 168 F.3d 633, 636–37 (2d Cir. 1999). The court held that the plea agreement’s

stipulation did not “obligat[e] the government to bring the issue to the attention of [the

defendant] or the District Court at the sentencing hearing, or to object to the PSR on the

defendant’s behalf.” Id. at 637. Thus, the government’s failure to object did not constitute a

breach. Ibid.

        Similarly, in Jeffries v. United States, the Eighth Circuit held that “the prosecution was

not required to object to the probation office’s recommendation” “against a reduction for

acceptance of responsibility,” despite the prosecution’s agreement to recommend that the court

apply the adjustment. 721 F.3d 1008, 1011, 1015 (8th Cir. 2013); see also United States v. Has

No Horses, 261 F.3d 744, 750 (8th Cir. 2001) (finding no breach where “the plea agreement did

not obligate the government to object to recommendations made in the presentence report” that

conflicted with the plea agreement).




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No. 14-1246
USA v. Smith
       A common thread running through each of these cases is the court’s focus on whether the

government violated an express promise made in a plea agreement to take—or to refrain from

taking—certain action. The prosecutor violated no such express promise in this case; in fact, at

no point did the prosecutor advocate for a sentence based on a drug quantity higher than the

stipulated amount. Cf. United States v. Fitch, 282 F.3d 364, 366–68 (6th Cir. 2002) (government

breached a plea agreement stipulating that it would recommend that the defendant’s sentence be

based solely on the specific quantity of drugs specified in the plea agreement by “vigorously

advocating” for an enhancement for a leadership role at sentencing). Thus, in light of this court’s

decision in Climer and the comparable precedent from other circuits, as well as the lack of

precedent establishing that a prosecutor has an obligation to object sua sponte to a PSR that sets

out a stipulation from a plea agreement but does not adopt it, Smith is unable to demonstrate on

plain-error review that the prosecutor’s silence was a breach of the plea agreement. Cf. United

States v. Lantz, 443 F. App’x 135, 139 (6th Cir. 2011) (“A lack of binding precedent on the

specific issue indicates that there is no plain error.”); United States v. Melton, 233 F. App’x 545,

547 (6th Cir. 2007) (error could not be “clear” or “unequivocal” where this court “had never

addressed the issue”).

                                                 B

       Smith’s reliance on United States v. Logan and United States v. Foster, see Appellant

Reply Br. 1–2, does not change the outcome. In Logan, this court determined that the prosecutor

violated a plea agreement that specifically provided that the government would “not . . . oppose

[the defendant’s] request for a two-level reduction of his offense level for acceptance of

responsibility.” 542 F. App’x 484, 489 (6th Cir. 2013). In that case, the government asserted in

its sentencing memorandum that the applicable “guidelines properly . . . do not include a . . .



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No. 14-1246
USA v. Smith
reduction for acceptance of responsibility.” Ibid. (emphasis added). At sentencing, moreover,

the government stated “that it had ‘no disagreements’ with the [PSR], which explicitly stated that

a reduction for acceptance of responsibility was improper,” and “specifically asked that [the

defendant’s] motion for a downward variance for acceptance of responsibility be denied.” Ibid.

While this court did note that the government failed to voice any disagreements with the PSR,

the government’s conduct went well beyond mere tacit approval of a PSR that contradicted the

plea agreement. Indeed, the court explicitly stated that “there would have been no breach had the

government remained neutral at sentencing as to acceptance of responsibility.” Id. at 490.

Instead, the government “went further, arguing that . . . a reduction for acceptance of

responsibility was not appropriate,” in violation of “the promise it made in the plea agreement.”

Ibid.2 No such conduct occurred in this case, as the prosecutor did, in fact, remain neutral at

sentencing regarding the drug-quantity issue, which was never raised.

       In Foster, this court determined that the government violated a plea agreement that

stipulated a specific guidelines range and provided that neither party could take a different

position concerning the guidelines. 527 F. App’x 406, 407 (6th Cir. 2013). In its supplemental

briefing, however, the government proposed an alternative guidelines range. It was this specific

violation of the plea agreement’s express terms that we found constituted a breach. Id. at 409.

Again, no such conduct occurred here.

       At most, the prosecutor here stood mute in the face of the PSR’s guidelines calculation.

See United States v. Miller, 48 F. App’x 933, 946 (6th Cir. 2002) (“[T]he government did not

breach the plea agreement by standing mute on the issue of acceptance of responsibility” when

2
 Even after determining that the government violated the plea agreement in Logan, this court
held that the defendant was “not entitled to resentencing” because he “failed to establish that the
government’s breach affected his substantial rights under plain-error analysis.” 542 F. App’x at
490.
                                               -12-
No. 14-1246
USA v. Smith
“the government took no position on the issue” and “the plea agreement did not require the

government to take the affirmative step of supporting a reduction for acceptance of

responsibility.”). At no point did the prosecutor “explicitly agree with the probation officer’s

conclusion in the” PSR regarding the applicable drug quantity or “advocate that the district court

accept the probation officer’s recommendation.” United States v. Baker, 19 F. App’x 223, 226

(6th Cir. 2001).

                                               IV

       In his brief, Smith mentions in passing that the PSR calculated the advisory guidelines

range “based upon numbers provided as part of Smith’s cooperation” with the government.

Appellant Br. 6–7. Smith does not mention his proffer and does not argue specifically that any

“proffer-protected” information was included in the PSR’s calculations.         Nor does Smith

challenge the PSR’s assertions that the larger drug quantity was based on unprotected admissions

and was attributable to him. Because Smith did not object to the PSR below on this or any

ground and does not develop any arguments on appeal, this issue is forfeited.           See, e.g.,

McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997).

                                                V

       Smith has failed to cite any authority to support his assertion that the government’s

stipulation regarding drug quantity included an implicit promise to object if the Probation Office

or district court adopted a different drug quantity in computing the applicable guidelines range.

While Smith’s argument raises some important concerns, we are constrained on plain-error

review to correct only those errors which are “clear or obvious, rather than subject to reasonable

dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). We therefore AFFIRM the district

court’s sentence.



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