           Case: 17-15048   Date Filed: 04/03/2018   Page: 1 of 8


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15048
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:17-cr-00077-SPC-MRM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

versus

TWASKI JACKSON,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 3, 2018)

Before WILLIAM PRYOR, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Defendant Twaski Jackson appeals his 10-month sentence, imposed after

pleading guilty to two counts of theft from programs receiving federal funds. On

appeal, Defendant argues that the Government breached his plea agreement by

failing to recommend that he receive a term of supervised release at the low end of

the guideline range. After careful review, we affirm.

I.    BACKGROUND

      Defendant held the position of Director of Client Services for the Housing

Authority City of Fort Myers and Lee County Housing Authority. An

investigation in 2016 revealed that Defendant had used agency credit cards for

personal expenses without permission between 2013 and 2016. He also received

kickbacks from approving check payments to a vendor for work that was not

performed. Defendant’s conduct resulted in a total loss of $86,766.30.

      In July 2017, Defendant was charged by way of an information with two

counts of theft from programs receiving federal funds, in violation of 18 U.S.C.

§ 666(a)(1)(A). Defendant later pled guilty to both counts pursuant to a written

plea agreement. As relevant to this appeal, the plea agreement stated:

             At the time of sentencing, and in the event that no adverse
      information is received suggesting such a recommendation to be
      unwarranted, the United States will recommend to the Court that the
      defendant receive a sentence at the low end of the applicable guideline
      range, as calculated by the Court. The defendant understands that this
      recommendation or request is not binding on the Court, and if not
      accepted by the Court, the defendant will not be allowed to withdraw
      the plea.
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      In preparation for sentencing, the probation officer prepared a Presentence

Investigation Report (PSR). The PSR assigned Defendant a base offense level of

6, pursuant to U.S.S.G. § 2B1.1(a)(2). Defendant received a six-level

enhancement under § 2B1.1(b)(1)(D) because the offense resulted in a loss of more

than $40,000 but less than $95,000. He also received a two-level adjustment

because he abused a position of public trust under U.S.S.G. § 3B1.3. With a two-

level reduction for acceptance of responsibility, Defendant’s total offense level was

12. Based on a total offense level of 12 and a criminal history category of I,

Defendant’s guideline range was 10 to 16 months’ imprisonment. The guideline

range for the term of supervised release was one to three years.

      At the sentencing hearing, the district court adopted the factual statements of

the PSR without objection and confirmed that the guideline range was 10 to 16

months’ imprisonment and 1 to 3 years of supervised release. Defendant requested

a sentence of credit for time served, 1 to 3 years of supervised release, and 250

hours of community service. The Government recommended “a prison term of ten

months, which is the low end of the guidelines.” The Government also sought two

years of supervised release.

      Although acknowledging Defendant’s military service, community service,

family support, and education, the court emphasized that Defendant stole money

from the public that was meant for individuals who truly needed it. After
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considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Defendant

to 10 months’ imprisonment and three years of supervised release. Defendant did

not raise any objections. This appeal followed.

II.   DISCUSSION

      We generally review de novo whether the Government breached a plea

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

However, because Defendant raises this argument for the first time on appeal, our

review is limited to plain error. Id. To establish plain error, there must be “(1) an

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

and if the first three prongs are met, then a court may exercise its discretion to

correct the error if (4) the error ‘seriously affects the fairness, integrity or public

reputation of judicial proceedings.’” United States v. Madden, 733 F.3d 1314,

1320 (11th Cir. 2013) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

      When determining whether the Government breached the plea agreement,

we must first “determine the scope of the government’s promises.” United States

v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004). “The government is bound by

any material promises [that] it makes to a defendant as part of a plea agreement

that induces [a] defendant to plead guilty.” United States v. Horsfall, 552 F.3d

1275, 1281 (11th Cir. 2008) (quotations omitted). “Whether the government

violated the agreement is judged according to the defendant’s reasonable


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understanding of the agreement when he entered the plea.” United States v.

Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007).

       In the present case, Defendant cannot establish that the Government’s

alleged breach of the plea agreement constituted plain error.1 In order for an error

to be plain, it must be “clear or obvious, rather than subject to reasonable dispute.”

Puckett v. United States, 556 U.S. 129, 135 (2009). In the context of plea

agreement breaches, the Supreme Court has advised that “‘not all breaches will be

clear or obvious,’ such as when the drafting of an agreement leaves the scope of

the government’s commitments open to doubt.” United States v. Sosa, 782 F.3d

630, 637 (11th Cir. 2015) (quoting Puckett, 556 U.S. at 143) (alteration accepted).

       Defendant’s plea agreement stated that the Government “will recommend to

the Court that the defendant receive a sentence at the low end of the applicable

guideline range, as calculated by the” district court. At sentencing, the

Government recommended that Defendant receive a 10-month imprisonment

sentence, which was the low end of the guideline range of 10 to 16 months’

imprisonment. Defendant nevertheless asserts that the Government breached the

agreement by not recommending a supervised-release term at the low-end of the



1
  The sentence appeal waiver in Defendant’s plea agreement does not bar him from arguing on
appeal that the Government breached the plea agreement. See Copeland, 381 F.3d at 1104–05
(concluding that an appeal waiver did not foreclose the defendant’s appeal on the ground that the
Government breached the plea agreement).
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guideline range. Indeed, the Government recommended a two-year term of

supervised release, and the guideline range was one to three years.

      Even if Defendant could establish that the Government committed error by

not recommending a one-year term of supervised release, he cannot show that the

error was plain because it is not “clear or obvious” that the provision of the plea

agreement stating that the Government agreed to recommend a sentence at the

“low end of the guideline range” applied to anything other than the term of

imprisonment. See Puckett, 556 U.S. at 135. Defendant has pointed to no binding

precedent interpreting a plea agreement provision—which provides that the

Government will recommend a sentence at the low end of the guideline range—as

applying to the term of supervised release. Nor have we found any case law

holding that the Government breaches a plea agreement under the circumstances

presented here—where the Government recommended an imprisonment term at the

low end of the guideline range but did not do so for the term of supervised release.

Because it is not clear under current law that the Government breached the plea

agreement by not recommending a one-year term of supervised release, Defendant

cannot establish error that is plain. See United States v. Lejarde-Rada, 319 F.3d

1288, 1291 (11th Cir. 2003) (“It is the law of this circuit that, at least where the

explicit language of a statute or rule does not specifically resolve an issue, there




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can be no plain error where there is no precedent from the Supreme Court or this

Court directly resolving it.”).

      Nevertheless, even if Defendant could show that the Government plainly

breached the plea agreement, Defendant cannot meet the third prong of the plain-

error test. To satisfy the third prong of plain-error review, “the error must have

affected the outcome of the district court proceedings.” United States v.

Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (quotations omitted). When

considering whether a defendant has shown that his substantial rights were affected

by an alleged breach of the plea agreement, this Court considers whether the

defendant’s sentence was affected by the breach. Puckett, 556 U.S. at 142 n.4.

      Defendant cannot show that his sentence would have been different if the

Government had recommended a one-year term of supervised release. See

Rodriguez, 398 F.3d at 1299 (“This burden of showing prejudice to meet the third-

prong requirement is anything but easy.”). For starters, Defendant requested a

term of supervised release between one and three years. But more importantly, the

Government recommended a two-year term of supervised release and stated that

Defendant’s “record doesn’t seem to suggest somebody that will need a lot of

supervision once he is released from prison.” Despite the Government’s

recommendation, the district court still imposed the maximum three-year term of

supervised release. The record shows that the district court was aware of the


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Government’s recommendation but deliberately imposed a longer term of

supervised release based on its analysis of all the relevant materials, including

Defendant’s personal history and the nature and circumstances of the crime. Under

these circumstances, it is at most unclear whether the district court would have

imposed a lesser term of supervised release if the Government had recommended a

one-year term. Defendant therefore cannot show that the error affected his

substantial rights. See Rodriguez, 398 F.3d at 1301 (“[W]here the effect of an error

on the result in the district court is uncertain or indeterminate—where we would

have to speculate—the appellant has not met his burden of showing a reasonable

probability that the result would have been different but for the error.”).

      Accordingly, Defendant’s sentence is AFFIRMED.




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