           Case: 16-12151   Date Filed: 02/28/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12151
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:15-cr-60184-WJZ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

PATRICK SANTERAMO,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 28, 2017)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Patrick Santeramo appeals his 18-month sentence, imposed after he pled

guilty to mail fraud. Santeramo asserts that the government breached his plea

agreement by failing to affirmatively and timely recommend that his federal

sentence should run concurrently with his related state sentence. After careful

review, we affirm.

                                         I.

      After a federal grand jury indicted Santeramo on two counts of mail fraud, in

violation of 18 U.S.C. § 1341, he agreed to plead guilty to one of those counts

pursuant to a plea agreement. In exchange for Santeramo’s guilty plea, the

government agreed to dismiss the second mail fraud count and, as relevant here, to

make jointly with defense counsel a number of recommendations to the district

court related to sentencing. These joint recommendations included that

Santeramo’s federal sentence run concurrently with a 60-month state sentence

based on the same fraudulent course of conduct and a recommendation by the

government that Santeramo should receive a sentence at the bottom of his advisory

Sentencing Guidelines range (18 to 24 months’ imprisonment). The plea

agreement also contained a disclaimer “that any recommendation that the

government makes to the Court as to sentencing, whether pursuant to this

agreement or otherwise, is not binding on the Court and the Court may disregard




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the recommendation in its entirety.” Plea Agreement, Doc. 24 at 5.1 The

agreement also stated that Santeramo understood that he was not permitted to

withdraw his plea based on the district court’s decision to reject a sentencing

recommendation made by either or both parties.

      The district court held a change-of-plea hearing at which Santeramo

confirmed that he understood the details of the plea agreement. Also at the

hearing, the government asked that the district court “let his sentence, whatever

sentence this Court imposes, start at the same time [as Santeramo’s state sentence]

and be served in state [prison].” Change-of-plea Hearing Transcript, Doc. 29 at

22-23. The district court accepted Santeramo’s plea.

      At the sentencing hearing, Santeramo requested that the district court impose

a sentence at the low end of his advisory guidelines range to run concurrently with

his state sentence. The government restated its recommendation that Santeramo

receive an 18-month sentence, the bottom of his guidelines range. The district

court imposed an 18-month sentence to run consecutively to Santeramo’s state

sentence. Santeramo thereafter objected to the sentences running consecutively,

and the government represented to the court that, pursuant to the plea agreement, it

agreed that Santeramo should serve his federal sentence concurrently with his state

sentence. The district court responded that it had “always consider[ed] that to be


      1
          “Doc.” refers to the numbered entry on the district court’s docket in this case.
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the government’s position,” but emphasized that the government’s position was not

binding on the court. Sentencing Transcript, Doc. 45 at 17. The district court

declined to revisit the sentence it had announced.

      This is Santeramo’s appeal.

                                          II.

      We generally review de novo whether the government has breached a plea

agreement. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008).

If, however, the defendant failed to object to the alleged breach below, then our

review is limited to plain error. See Puckett v. United States, 556 U.S. 129, 136–43

(2009). Under plain error review, the defendant must show (1) an error, (2) that is

plain, (3) that affected the defendant’s substantial rights. Id. at 135. If those three

prongs are met, we may exercise our discretion to correct the error if it seriously

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

      The parties dispute whether Santeramo raised a proper objection in the

district court. Although he objected to his sentences running consecutively, he did

not assert that the government had breached the plea agreement. We need not

resolve the parties’ dispute because, as we discuss below, Santeramo’s argument

fails even under a de novo standard of review.




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                                        III.

      A material promise by the government, which induces the defendant to plead

guilty, binds the government to that promise. Santobello v. New York, 404 U.S.

257, 262 (1971). In determining whether the government breached the plea

agreement, we must “determine the scope of the government’s promises.” United

States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004). We analyze the plea

agreement according to the defendant’s reasonable understanding upon entering

the plea. United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). Whether the

district court considered or was influenced by the government’s breach is

irrelevant. United States v. Johnson, 132 F.3d 628, 630 (11th Cir. 1998). If the

government breaches a plea agreement, we may either require specific

performance of the plea agreement or permit the defendant to withdraw his plea.

Id. at 631.

      Santeramo’s assertion that the government breached the plea agreement is

belied by the record. By agreeing with defense counsel during the sentencing

hearing that Santeramo’s federal sentence should run concurrently with his state

sentence, the government fulfilled its obligation. See Santobello, 404 U.S. at 262;

Copeland, 381 F.3d at 1105. Even though the government failed to recommend a

concurrent sentence before the district court pronounced the sentence, it previously

had made the recommendation at the change-of-plea hearing. And the district


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court confirmed at sentencing that it had “always consider[ed]” the government’s

recommendation to be that Santeramo’s federal and state sentences run

concurrently but that the court was not bound by the recommendation. Moreover,

when the government recommended a concurrent sentence after defense counsel’s

objection at the sentencing hearing, the district court could still entertain the

recommendation and revisit the sentence it had announced. See Puckett, 556 U.S.

at 140. The court simply chose not to. Thus, no breach occurred.

      Accordingly, we affirm the district court’s imposition of Santeramo’s 18

month federal sentence to run consecutively with his state sentence.

      AFFIRMED.




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