           Case: 12-15239   Date Filed: 09/25/2013   Page: 1 of 16


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15239
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 7:12-cr-00006-HL-TQL-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus


EDILBERTO RIVIERA-SOLONA,
a.k.a. Eddie Riviera,

                                                          Defendant-Appellant.

                       ________________________

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

                            (September 25, 2013)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 12-15239       Date Filed: 09/25/2013     Page: 2 of 16


       After pleading guilty, Edilberto Rivera-Solona 1 appeals his sentence for

possession with intent to distribute over 500 grams of cocaine, in violation of 21

U.S.C. § 841(a)(1) and 841(b)(1)(B)(ii). On appeal, Rivera-Solona argues that the

government breached the plea agreement by failing to object to the district court’s

imposition of a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1).

Rivera-Solona also raises sentencing claims. After review, we affirm Rivera-

Solona’s conviction and sentence and dismiss his sentencing claims pursuant to the

sentence-appeal waiver in the plea agreement.

                                   I. BACKGROUND

A.     Arrest and Indictment

       In 2011, agents with an FBI task force conducted surveillance on Defendant

Rivera-Solona, whom they suspected of cocaine distribution. Agents watched as

Rivera-Solona drove to his girlfriend’s father’s residence in Coolidge, Georgia,

where he walked around in the woods behind the residence, entered a shed and the

residence and then placed a package inside his car. After conducting a traffic stop,

agents found approximately 1 kilogram of cocaine in a child’s car seat in Rivera-

Solona’s car. In the woods behind the Coolidge residence, agents found cocaine

wrappings.



       1
        The defendant’s last name was misspelled as Riviera-Solona in the indictment. This
opinion uses the correct spelling, Rivera-Solona.
                                                  2
              Case: 12-15239      Date Filed: 09/25/2013    Page: 3 of 16


      With the consent of Rivera-Solona’s girlfriend, agents also searched Rivera-

Solona’s own residence in Norman Park, Georgia. In the Norman Park residence,

agents found $46,640 in the master bedroom. They also found a rifle and a

shotgun.

      A federal grand jury indicted Rivera-Solona with one count of possession

with intent to distribute over 500 grams of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and 841(b)(1)(B)(ii).

B.    Plea Agreement

      Subsequently, Defendant Rivera-Solona entered into a written plea

agreement, wherein Rivera-Solona pled guilty to the charged drug offense, and the

government agreed not to pursue any additional, known federal charges. The

government also agreed to consider recommending variances or departures based

on Rivera-Solona’s cooperation with the government.

      Among other things, the plea agreement provided that: (1) Rivera-Solona

would plead guilty with the understanding that the district court was not bound by

any estimate of the advisory sentencing range and had discretion in choosing a

sentence; (2) Rivera-Solona would not be permitted to withdraw his guilty plea on

the basis that the probation officer or the district court calculated a different

guidelines range than he anticipated; and (3) Rivera-Solona faced a statutory

minimum five-year sentence and a statutory maximum forty-year sentence.


                                               3
              Case: 12-15239      Date Filed: 09/25/2013    Page: 4 of 16


      The plea agreement contained a sentence-appeal waiver. Under this

provision, Rivera-Solona agreed to waive his right to any appeal of his sentence,

either direct or collateral, unless the district court “impose[d] a sentence that

exceed[ed] the advisory guideline range” or the government appealed first.

      The plea agreement also contained a stipulation of fact. At the outset, the

stipulation stated that the parties understood that the stipulation was not binding on

the district court and that the district court might “accept this stipulation as written

or in its discretion with the aid of the Pre-Sentence Report determine the facts

relevant to sentencing.” The stipulation stated that the parties agreed that the

government could prove beyond a reasonable doubt, inter alia, that: (1) while

conducting surveillance, agents followed Rivera-Solona as he drove to the

Coolidge residence and observed him loading items into his car from both the

house and a shed on the property; (2) when agents conducted a traffic stop, they

found approximately 1 kilogram of cocaine inside a child’s car seat in Rivera-

Solona’s car; (3) pursuant to a search warrant, agents searched the Coolidge

residence; (4) with the consent of Rivera-Solona’s girlfriend, agents conducted a

search of the Norman Park residence and found $43,640 in the master bedroom

closet; and (5) laboratory testing confirmed that the substance found in the car was

cocaine.




                                               4
              Case: 12-15239     Date Filed: 09/25/2013   Page: 5 of 16


      In addition, the parties agreed that there was insufficient evidence to support

a firearms enhancement under U.S.S.G. § 2D1.1(b)(1) or to prohibit application of

the safety-valve, as follows:

             The government and Defendant further stipulate that there is
      insufficient evidence to support the application of the enhancement
      found at U.S.S.G. § 2D1.1(b)(1) or to prohibit the application of
      U.S.S.G. § 5C1.2(a)(2) in that the firearms recovered in this case were
      not shown to be possessed by the Defendant, nor were there narcotics
      recovered from the residence in which the firearms were recovered.

C.    Plea Hearing

      At Rivera-Solona’s plea hearing, the district court ensured that Rivera-

Solona was competent to enter a plea and reviewed the indictment and plea

agreement with him. Rivera-Solona stated that he had discussed the case with his

attorney and was satisfied with his representation. Rivera-Solona also informed

the district court that he had reviewed, understood, signed, and initialed the plea

agreement. He confirmed that the plea agreement was the complete agreement and

that he understood that its terms were not binding on the district court.

      The district court had the prosecutor read the plea agreement’s stipulation of

fact out loud. Rivera-Solona indicated that he understood the stipulation of fact

and agreed that it was a true statement of his conduct.

      The district court also reviewed the sentence-appeal waiver. Rivera-Solona

confirmed that he understood he was waiving his right to appeal his sentence,

either on direct appeal or collaterally, unless his sentence exceeded his advisory

                                              5
              Case: 12-15239     Date Filed: 09/25/2013    Page: 6 of 16


guidelines range or he had a claim for ineffective assistance of counsel. The

district court determined that there was a sufficient factual basis for the plea and

that the plea was entered freely and voluntarily.

D.    Presentence Investigation Report

      The presentence investigation report (“PSI”) reported facts consistent with

the plea agreement’s stipulation of fact. However, the PSI also stated that a

shotgun and rifle were recovered from the Norman Park residence and that Rivera-

Solona’s girlfriend “advised agents that the defendant had kept the firearms in a

shed at the [Coolidge] residence until recently when he brought them to [the

Norman Park] residence.”

      The PSI recommended: (1) a base offense level of 26, pursuant to U.S.S.G.

§§ 2D1.1(a)(3) and (c)(7), for possessing 992.8 grams of cocaine; (2) a 2-level

dangerous weapons enhancement under § 2D1.1(b)(1); and (3) a 3-level

acceptance of responsibility reduction under § 3E1.1, yielding a total offense level

of 25. The PSI explained that the dangerous weapons enhancement applied

because Rivera-Solona had previously kept the guns in a shed where he conducted

his cocaine trafficking activities. Based on a total offense level of 25 and a

criminal history category I, the PSI initially calculated an advisory guidelines

range of 57 to 71 months. However, because Rivera-Solona faced a statutory




                                              6
              Case: 12-15239     Date Filed: 09/25/2013    Page: 7 of 16


minimum sentence of five years, the PSI adjusted the advisory guidelines range to

60 to 71 months. See U.S.S.G. § 5G1.1(c)(2).

       Neither Rivera-Solona nor the government filed any written objections to the

PSI.

E.     Sentencing Hearing

       At the sentencing hearing, the parties did not raise any objections to the

PSI’s facts or guidelines calculations. The government recommended a sentence

within the advisory guidelines range calculated in the PSI. Although neither party

objected to the PSI’s application of the § 2D1.1(b)(1) firearm enhancement, the

district court explored the parties’ reasons for stipulating in the plea agreement that

there was insufficient evidence to support a firearm enhancement.

       Specifically, the district court asked the prosecutor whether guns were

involved in the case. The prosecutor responded that although guns were found in

one of the locations, the parties had agreed and stipulated that there was

insufficient evidence to support application of the firearm enhancement. The

district court asked about the evidence with respect to the guns. The prosecutor

stated that the guns were not in Rivera-Solona’s possession when they were found,

but were found in a residence connected to Rivera-Solona, although not the

residence where the drugs were found.




                                              7
              Case: 12-15239      Date Filed: 09/25/2013    Page: 8 of 16


      The district court inquired about the $40,000, and the prosecutor confirmed

that the cash was found in the same residence as the guns. The district court then

asked whether the government had concluded that there was sufficient evidence to

connect the $40,000 to Rivera-Solona and retained the money. The prosecutor

stated that he was not sure. The district court further stated “I would like some

explanation as to why, if the money was somehow connected with the drugs and

the Defendant and the guns were not somehow connected with the drugs or the

Defendant.”

      Neither the prosecutor nor the defense attorney at the sentencing hearing was

involved in the plea agreement negotiations. The prosecutor stated that “all [he

could] go with is the stipulation . . . that there was not sufficient evidence to

connect the guns to the drugs.” Defense counsel concurred with the prosecutor,

stating “[t]hose two lawyers who negotiated this plea agreement would certainly

know more about what proof or lack of proof thereof they had with respect to the

guns.” Defense counsel stated that her understanding was that the two attorneys

agreed “that the small evidence that they had would not support a finding . . . under

the statute that the guns were connected in any way with the narcotics.” At the

district court’s questioning, defense counsel stated that she believed the guns were

found in the same residence as the money, but not in the same room. The

prosecutor indicated that he knew only what was in the plea agreement and that


                                               8
              Case: 12-15239    Date Filed: 09/25/2013    Page: 9 of 16


“the connections could not be sufficiently made . . . in an evidentiary way.” The

prosecutor also stated that he did not know whether the money was forfeited in

state or federal proceedings.

      The district court recessed to allow the parties to try and contact the

attorneys who had negotiated the plea agreement. When the hearing resumed, the

prosecutor reported that he had spoken with the government’s attorney, and she

had no specific information about where the guns were found. The prosecutor

explained that the kinds of guns—a 410 shotgun and a 22-caliber rifle “rather than

hand guns or sawed off shot guns entered into the thought process of the difficulty

of proving the connection to the drugs.” The prosecutor also confirmed that the

money was administratively forfeited without a hearing after no one claimed it.

      Defense counsel reported that she was unable to speak to the prior defense

attorney who negotiated the plea agreement. Defense counsel pointed out,

however, that according to commentary to the Sentencing Guidelines the firearm

enhancement did not apply to a hunting rifle found in a closet, and that the two

firearms could be considered hunting rifles. The district court explained that it had

raised these questions because “it simply seems curious . . . that the case has come

down as it has” and that it was “remarkable” that the government would ignore that

the money was found in proximity to the two guns. The district court stated that it

usually is “very deferential” to the government’s decision to enter into a stipulation


                                             9
             Case: 12-15239     Date Filed: 09/25/2013   Page: 10 of 16


and “generally give[s] them benefit of the doubt when they explain their decision,”

but that Rivera-Solona’s case was “very unusual.”

      When the district court asked whether the parties had any objections to the

PSI, the government and the defense both indicated they did not have objections.

The district court reviewed the PSI’s guidelines calculations, and defense counsel

stated that she agreed with them. The district court then adopted the PSI

calculations and the resulting 60- to 71-month range. After considering the 18

U.S.C. § 3553(a) factors, the district court imposed a 71-month sentence. After

imposing the sentence, the district court asked whether Rivera-Solona had any

objections to the sentence, and defense counsel stated that he did not.

                                 II. DISCUSSION

A.    Breach of the Plea Agreement

      On appeal, Rivera-Solona argues for the first time that the government

breached the plea agreement when it failed to object to the district court’s

imposition of the 2-level firearm enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1).

Ordinarily, we review whether the government breached the plea agreement de

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

where, as here, the defendant failed to object to an alleged breach of the plea

agreement before the district court, we review for plain error. United States v.

Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Plain error exits when there is (1)


                                             10
              Case: 12-15239     Date Filed: 09/25/2013     Page: 11 of 16


error, (2) that is plain, (3) that affected the defendant’s substantial rights, and (4)

that “seriously affect[ed] the fairness, integrity, or public reputation of the judicial

proceedings.” Id. at 1281. An error is plain if it is “clear or obvious, rather than

subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135, 129 S.

Ct. 1423, 1429 (2009). For the reasons that follow, we conclude that the

government’s failure to object to the PSI’s recommendation of a firearm

enhancement and the district court’s adoption of the PSI at sentencing was not a

breach of the plea agreement, much less a “clear or obvious” breach.

      “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008) (quotation marks omitted).

To determine whether the government breached the plea agreement, we look at the

defendant’s reasonable understanding of the agreement at the time he entered his

plea. Id.

      The express terms of the plea agreement did not obligate the government to

do anything with respect to a § 2D1.1(b)(1) firearm enhancement. Instead, the

government merely agreed to the legal conclusion that the evidence was

insufficient to support such an enhancement. The plea agreement also recognized

that the district court had the discretion to determine any pertinent facts by a

preponderance of the evidence and was not bound by the parties’ stipulation.


                                               11
             Case: 12-15239       Date Filed: 09/25/2013   Page: 12 of 16


      Moreover, the prosecutor’s statements at Rivera-Solona’s sentencing hearing

were fully consistent with the stipulation’s legal conclusion and its facts. In fact,

both the prosecutor and defense counsel advised the district court that the firearms

were not found in Rivera-Solona’s possession when he was arrested or in the

location where his drug distribution activities took place, but instead were found at

another residence connected to him. The parties further advised the district court

that the reason they believed there was insufficient evidence to support the firearm

enhancement, despite the proximity of the firearms to the money, was the type of

firearms found. During the district court’s exploration of the parties’ reasons for

entering into the stipulation, the prosecutor did not say anything to undermine the

stipulation’s legal conclusion.

      Even if it would be reasonable for Rivera-Solona to believe that the parties’

legal stipulation prevented the government from advocating for application of the

firearm enhancement, see United States v. Taylor, 77 F.3d 368, 370 (11th Cir.

1996), it would not be reasonable to expect the government also to affirmatively

object to the application of the enhancement, even when the defendant himself

does not object to it. See United States v. Benchimol, 471 U.S. 453, 455-56, 105

S. Ct. 2103, 2105 (1985) (stating that, unless specified in the plea agreement, the

government is not required to “enthusiastically” commit itself to its obligations

under the plea agreement because Federal Rule of Criminal Procedure 11 “speaks


                                              12
              Case: 12-15239     Date Filed: 09/25/2013     Page: 13 of 16


in terms of what the parties in fact agree to, and does not suggest that such implied-

in-law terms [be] read into [a plea] agreement”). Notably, Rivera-Solona does not

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 PSI’s

calculations or if the district court imposes it. At the very least, there is no error

that is plain in this case. See Puckett, 556 U.S. at 143, 129 S. Ct. at 1433

      We also recognize that Rivera-Solona cites United States v. Boatner, 966

F.2d 1575 (11th Cir. 1992), but Boatner is materially distinguishable and did not

require the government to object to the PSI or the district court’s sentence.

      In Boatner, the parties stipulated in the plea agreement to a particular drug

quantity, the probation officer used a much larger drug quantity, and the defendant

objected. 966 F.3d at 1577. Importantly, at sentencing the government

affirmatively supported the probation officer’s drug calculation. Id. The

government stated that it had stipulated to the drug quantity because “[a]t the time

[it] was what [the government] could prove,” but that the probation officer had

gathered information from “other cooperating witnesses” who had “provided

independently” the additional drug amounts, and the probation officer had merely

“done his duty in putting those into the report.” Id. Further, the probation officer




                                               13
              Case: 12-15239    Date Filed: 09/25/2013    Page: 14 of 16


even testified that he had actually obtained the additional drug amounts from two

of the investigators, one an FBI agent. Id. at 1577-78.

       On appeal, this Court determined that the drug quantity stipulation was a

stipulation of fact intended to bind the government and that the government had

breached that stipulation of fact when it “introduced evidence through the

presentence investigation report showing” that the defendant was involved with a

larger drug amount. Id. at 1578-79. The Court concluded that “the government

violated its agreement at the sentencing hearing when it attempted to bolster the

presentence investigation report.” Id. at 1579.

       This case is materially different from Boatner in at least two significant

respects. First, the defendant in Boatner objected to the information in the PSI that

was inconsistent with the plea agreement. Because the defendant in Boatner

objected, Boatner says nothing about when and if the government breaches a plea

agreement by failing to object to the PSI’s calculations when the defendant also

fails to object.

       Second, the conduct in Boatner that breached the plea agreement was the

government’s investigators providing inconsistent information to the probation

officer in an attempt to bolster the PSI. At Boatner’s sentencing hearing, the

probation officer testified that government agents gave him the larger drug

quantity. Here, there is no such evidence, and Rivera-Solona does not contend that


                                             14
               Case: 12-15239   Date Filed: 09/25/2013   Page: 15 of 16


the government breached the plea agreement in this way. Thus, Boatner does not

establish at all, much less plainly, that the government breached the plea agreement

by failing to object to the PSI and the district court’s firearm enhancement in

Rivera-Solona’s case.

      Finally, we note that Rivera-Solona expressly agreed that the district court

was not bound by the parties’ stipulation and would determine the facts. The facts

in the PSI established that Rivera-Solona had stored the firearms in the shed at the

Coolidge residence where he conducted his cocaine distribution activities and then

moved them to the Norman Park residence shortly before his arrest. The district

court was fully aware of the parties’ stipulation that there was insufficient evidence

to support the firearm enhancement, having discussed it with the parties at length.

The district court obviously disagreed with the parties given that, after exploring

their reasons for reaching this legal conclusion, it adopted the PSI’s guidelines

calculations. On this record, Rivera-Solona has not carried his burden to show

plain error.

B.    Sentencing Claims

      Rivera-Solona raises two sentencing issues: (1) there was insufficient

evidence to support the U.S.S.G. § 2D1.1(b)(1) firearm enhancement, and (2) his

71-month sentence is substantively unreasonable.




                                             15
             Case: 12-15239     Date Filed: 09/25/2013   Page: 16 of 16


      Rivera-Solona does not dispute that these claims fall within the scope of his

sentence-appeal waiver. Neither of the circumstances under which Rivera-Solona

reserved his right to appeal his sentence has occurred. Rivera-Solona’s 71-month

sentence did not exceed his advisory guidelines range of 60 to 71 months and has

not been appealed by the government. Further, Rivera-Solona does not contend

that the sentence-appeal waiver is unenforceable because it was not made

knowingly and voluntarily. See United States v. Bushert, 997 F.2d 1343, 1351

(11th Cir. 1993) (stating that a sentence-appeal waiver will be enforced if it was

made knowingly and voluntarily).

      Instead, Rivera-Solona argues that the government’s breach of the plea

agreement “releases” him from the sentence appeal waiver. Because, for the

reasons already discussed, Rivera-Solona has not shown that the government

breached the plea agreement, we need not address this issue. Accordingly, we

dismiss Rivera-Solona’s appeal to the extent he raises these two sentencing claims

barred by his sentence-appeal waiver.

      AFFIRMED IN PART, DISMISSED IN PART.




                                             16
