                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              NOV 5, 2008
                               No. 07-15199                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 06-60170-CR-MGC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

HEATH HOWARD,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (November 5, 2008)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:

     After pleading guilty, Heath Howard appeals his conviction for conspiracy
to commit robbery on the grounds that the government breached the plea

agreement. After review, we affirm.

                                 I. BACKGROUND

      Howard pled guilty to one count of conspiracy to commit robbery, in

violation of 18 U.S.C. § 1951(a). In the plea agreement, Howard and the

government agreed to “jointly recommend that the court impose a sentence within

the advisory sentencing guideline range produced by application of the Sentencing

Guidelines” and “that the court neither depart upward nor depart downward under

the Sentencing Guidelines when determining the advisory sentencing guideline

range in this case.” The plea agreement also stated that the government “reserves

the right to inform the court and the probation office of all facts pertinent to the

sentencing process, including all relevant information concerning . . . the defendant

and the defendant’s background.”

      The Presentence Investigation Report (“PSI”) determined that Howard

qualified as a career offender under U.S.S.G. § 4B1.1 based on his two prior felony

convictions for controlled substance offenses. After applying a three-level

reduction for acceptance of responsibility, the PSI calculated an advisory

guidelines range of 151 to 188 months’ imprisonment.

      At sentencing, Howard argued that the district court should sentence him



                                            2
below the guidelines range based on the factors in 18 U.S.C. § 3553(a). Howard

argued that he played only a minor role in the conspiracy and that he was less

culpable than his codefendant Marcus Howard, who received a sentence of 84

months’ imprisonment. Howard also claimed that the PSI overstated his criminal

history in designating him as a career offender because one of the predicate

felonies occurred before his eighteenth birthday. Thus, Howard asked the district

court to exercise its discretion to impose a 84-month sentence, which would have

been the low end of the guidelines range if the career-offender enhancement was

not applied.

      In response, the probation officer noted that Howard had two additional

felonies that would qualify him as a career offender even if the district court did

not consider the felony conviction disputed by Howard. The government argued

that Heath Howard’s criminal history was not overrepresented by his classification

as a career offender because Howard’s criminal activity started at age thirteen, he

“has been a menace ever since,” and “[h]e has not had a year where he is crime

free.” As to Howard’s culpability compared to his codefendants, the government

argued that Howard was not a minor participant in the offense. The government

explained that the parties believed that all participants in the conspiracy would be

sentenced as career offenders at the time that Howard’s plea agreement was signed,



                                           3
but they learned later that codefendant Marcus Howard did not have enough

predicate felonies to qualify as a career offender. Thus, the government

recommended that the district court sentence defendant Howard within the

advisory guidelines range and stated that it would not object to a sentence at the

bottom of the advisory guidelines range.

       The district court found that defendant Howard’s criminal history was

accurate and appropriate for purposes of the career-offender enhancement. The

district court calculated an advisory guidelines range of 151 to 188 months’

imprisonment and sentenced Howard to 151 months’ imprisonment. Howard filed

this appeal.1

                                    II. DISCUSSION

       “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.

Furthermore, whether the government violated the agreement is judged according

to the defendant's reasonable understanding at the time he entered his plea.”

United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996) (quotation marks,

brackets, and citations omitted).


       1
          We generally review de novo the legal question of whether the government breached a
plea agreement. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008), petition
for cert. filed (U.S. May 15, 2008) (No. 07-11001). However, because Howard did not object to
the government’s conduct in the district court, we review only for plain error. Id.

                                              4
      We conclude that the government did not breach the plea agreement. First,

the government did not breach its promises in the plea agreement to recommend

that the district court sentence Howard “within the advisory guideline range

produced by application of the Sentencing Guidelines” and not depart upward or

downward from the guidelines range. To the contrary, the government

recommended that the district court sentence Howard within the advisory

guidelines range of 151 to 188 months’ imprisonment and stated that it would be

satisfied with a sentence at the lower end of that guidelines range. The

government’s agreement with the district court’s calculation of the advisory

guidelines range, which included the application of the career-offender

enhancement, is not equivalent to a recommendation that the district court depart

upward from the guidelines range. Compare U.S.S.G. § 4B1.1 (career-offender

enhancement), with U.S.S.G. § 4A1.3(a) (policy statement on upward departures

based on criminal history category underrepresenting criminal history).

      Second, the government’s comments on Howard’s criminal history at

sentencing did not violate the plea agreement. The plea agreement explicitly

provided that the government may inform the district court of facts relevant to

sentencing, including information on Howard’s background. Furthermore, the

government’s statements were made only in response to Howard’s argument that



                                          5
the district court should vary downward from the advisory guidelines range

because it overrepresented his criminal history.

      Thus, we affirm Howard’s conviction.

      AFFIRMED.




                                          6
