                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-2510
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Frank G. Rendon

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                            Submitted: March 13, 2014
                               Filed: May 22, 2014
                                 ____________

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
                         ____________

MURPHY, Circuit Judge.

       Frank Rendon pled guilty to conspiracy to distribute 500 grams or more of a
mixture containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1),
and 846. After reaching a plea agreement with the government, Rendon wrote letters
to the district court in which he denied having distributed 500 grams or more and
asked to be convicted for a lower amount. At sentencing the district court1 denied
Rendon an acceptance of responsibility reduction and sentenced him to 360 months
imprisonment. Rendon appeals, arguing that the prosecution breached the plea
agreement by failing to move for a three level reduction for acceptance of
responsibility and by agreeing with the district court's calculation of a drug quantity
amount higher than in the plea agreement. We affirm.

                                           I.

       Frank Rendon was arrested on September 18, 2007, after officers responded
to a call that gunshots were heard at his Missouri home. A search of the house
revealed methamphetamine, distribution paraphernalia, and a rifle. In the ensuing
investigation officers learned that Rendon was involved in a conspiracy to distribute
methamphetamine in which he and at least three coconspirators sold the drug out of
Rendon's house.

       Rendon reached a plea agreement with the government under which he pled
guilty and admitted to the fact that "he was involved in the distribution of at least 500
grams of methamphetamine." In the agreement the government stated that it
"believes the applicable Guidelines section . . . provides for a base offense level of
36," while Rendon stated that he "believes the applicable Guidelines section . . .
provides for a base offense level of 32." The plea agreement also provided that the
government would seek a three level reduction for Rendon's acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1. The government was to file a motion
seeking this reduction at sentencing unless Rendon failed to abide by the terms of the
plea agreement, attempted to withdraw his guilty plea, "or otherwise engage[d] in
conduct inconsistent with his acceptance of responsibility." The plea agreement also


      1
      The Honorable Gary A. Fenner, United States District Judge for the
Western District of Missouri.

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stated that the parties' estimates with respect to the guideline computation did not
bind the district court or the probation office. Under paragraph 19 of the agreement,
the government would be released from its obligations if, among other things, Rendon
"violate[d] any term of this plea agreement between the signing of this plea agreement
and the date of sentencing," or if he "provide[d] information to the Probation Office
or the Court that [wa]s intentionally misleading, incomplete, or untruthful, or
otherwise breach[ing] this plea agreement."

       After signing the agreement but before sentencing, Rendon wrote two letters
which he sent to the district court. In his second letter he claimed that another
defendant had been charged with a quantity of 50 to 200 grams, and that "[t]he
Prosecution is adding these large amounts of drugs that never excisted [sic] and have
been made up by these co-defendants." He also wrote "I accept responsibility for any
wrong doing that has solid evidence against me," but added "I pleaded guilty to this
plea agreement under fear and intimidation of doing alot [sic] of time . . . there was
never no 500 or more grams of drug[.] I'm asking that you please find me guilty of
50 to 200 grams like all my other co-defendants." He also asked to be separated from
the conspiracy.

      The presentence investigation report (PSR) calculated over 300 pounds (136.08
kilograms) of methamphetamine to be the quantity reasonably foreseeable to Rendon
which led to a base offense level of 38. It also recommended applying a two level
enhancement for possession of a dangerous weapon.

       At sentencing the district court acknowledged it had received two letters from
Rendon and explained that in the letters "Mr. Rendon takes the position that he did
not in fact commit the crime that he pled guilty to." The court indicated it would
deny credit for acceptance of responsibility on the basis of these letters. Rendon's
counsel informed the court that she had not seen the letters Rendon had sent, but she
argued that under the plea agreement Rendon retained the ability to challenge the

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drug quantity attributed to him. After the court provided counsel with the letters,
however, she stated that she "was not aware that Mr. Rendon had written these letters
to this extent to the Court. So I accept that and your position on the guidelines." The
court then asked the government if it took a position inconsistent with the court's
position on acceptance of responsibility, and the government replied that it did not.

        After Rendon objected to various aspects of the presentence investigation
report, the government produced four witnesses who testified to Rendon's
involvement in the conspiracy and the quantity of drugs sold by the conspiracy. The
district court asked for the government's position on drug quantity, and the
government stated that the quantity was "in the ballpark of at least 30 pounds of
meth." The district court responded "I agree with you there and if you're not seeking
to support the 300-pound estimate." The government confirmed that it was not. The
district court proceeded to overrule Rendon's objection to the PSR calculation of a
base offense level of 38, stating "I believe the evidence supports the base offense
level as calculated under the presentence report." The court added a two level
enhancement for possessing a dangerous weapon, resulting in a total offense level of
40, and then asked the government if it agreed with the court's calculation. The
government replied that it did. With this total offense level of 40 and a criminal
history category of III, Rendon's guideline range was determined to be 360 months
to life. The court sentenced Rendon to 360 months.

       Rendon now appeals, arguing that the government breached the plea agreement
by failing to move the district court for a three level reduction for acceptance of
responsibility and by agreeing to a base offense level of 38 when the plea agreement
specified a level of 36.




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                                          II.

       Rendon contends that the government breached the plea agreement when it did
not request a three level reduction for acceptance of responsibility. We review for
plain error because Rendon did not make this objection at sentencing. United States
v. Birdhorse, 701 F.3d 548, 551 (8th Cir. 2012). To obtain relief Rendon must show
a "clear or obvious" error which affects his "substantive rights," and we will only
exercise our discretion to correct this error if not doing so would "undermine the
fairness, integrity, or public reputation of judicial proceedings." United States v.
Martin, 583 F.3d 1068, 1074 (8th Cir. 2009).

       Under the plea agreement in Martin the government agreed to request a
reduction for acceptance of responsibility unless it were to learn of information before
sentencing which was "inconsistent with the defendant's acceptance of
responsibility." Id. at 1071, 1074 (internal quotation marks omitted). After entering
into this agreement, the defendant made statements in jail in which he denied
responsibility for the crimes to which he had pled. Id. at 1071–72. On that record we
concluded that the government had not breached its plea agreement by not requesting
a reduction and that there had been no plain error. Id. at 1074–75.

      We also see no plain error in this case. As in Martin, Rendon's plea agreement
contained only a conditional obligation for the government to request a sentencing
reduction, contingent on Rendon not "engag[ing] in conduct inconsistent with his
acceptance of responsibility." See id. at 1071. In his letters to the district court,
Rendon asked to be viewed apart from the conspiracy and to be found guilty for an
offense involving only 50 to 200 grams, rather than the 500 or more grams to which
he had pled. We conclude that Rendon's attempt to separate himself from the
conspiracy released the government from its obligation to request a reduction for
acceptance of responsibility. The government did not breach the plea agreement.



                                          -5-
       Rendon argues that the record contains no evidence that the government saw
the letters he authored, but the district court informed the parties at sentencing that
it had received the letters and that in the letters Rendon had taken "the position that
he did not in fact commit the crime that he pled guilty to." This statement by the
district court revealed that Rendon had acted in a manner inconsistent with his
accepting responsibility, and the government was entitled to rely on that information.

                                          III.

       Rendon also asserts that the government breached the plea agreement by
agreeing at sentencing to a base offense level of 38. The plea agreement had reflected
the government's belief that the appropriate offense level was 36 and Rendon's own
view that the correct level was 32. Since Rendon did not object to this alleged breach
of the plea agreement at sentencing, our review is now for plain error. United States
v. Lara, 690 F.3d 1079, 1081 (8th Cir. 2012). Plea agreements are essentially
contracts and "should be interpreted according to general contract principles." United
States v. Dewitt, 366 F.3d 667, 669 (8th Cir. 2004). If a plea "rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be fulfilled.” Santobello v.
New York, 404 U.S. 257, 262 (1971).

       Rendon likens his case to those in which our court has concluded that the
government breached plea agreements by presenting evidence of higher drug
quantities than identified in the agreement. See Lara, 690 F.3d at 1083; Dewitt, 366
F.3d at 669–70. It is far from plain that the district court erred by failing to hold the
government to its obligations under the agreement, because Rendon likely breached
the plea agreement prior to sentencing. See United States v. Britt, 917 F.2d 353, 359
(8th Cir. 1990) ("[The defendant's] attempt to use contract principles of fairness and
equity to enforce the government's obligations under his plea agreement fails because
[the defendant] himself is the breaching party."). The plea agreement stated Rendon's

                                          -6-
position that he was responsible for at least 500 grams of methamphetamine, an
amount which required a base offense level of 32. U.S.S.G. § 2D1.1(c)(4). In his
letter to the district court Rendon nevertheless denied that he had been involved with
more than 500 grams of methamphetamine and asked the court to "please find [him]
guilty of 50 to 200 grams." The latter quantity would equate to a base offense level
of 26. U.S.S.G. § 2D1.1(c)(7).

       By requesting a base offense level of 26 in his letter, Rendon may have
breached the plea agreement. Since paragraph 19 of the agreement provided that the
government would be released from its obligations in the event of a breach by
Rendon, it is not clear under the terms of the agreement that the government was still
bound at sentencing by its earlier statement that the appropriate base offense level had
been 36. Although the government typically files a motion asking the district court
to find the defendant in breach of a plea agreement before it is released from its
obligations, the government did not do so here. See Britt, 917 F.2d at 356; see also
United States v. Lezine, 166 F.3d 895, 901 (7th Cir. 1999) ("The Government . . .
cannot unilaterally determine that a defendant has breached a plea agreement. When
the prosecution seeks to escape an obligation under a plea agreement on the grounds
that the defendant has failed to meet some precondition, the defendant is entitled to
an evidentiary hearing.") (citation omitted).

       Since Rendon cannot show that he was prejudiced by the government's actions,
we need not decide whether Rendon breached the agreement and released the
government of its obligations. To obtain reversal on plain error review Rendon must
demonstrate that the plain error affected his substantial rights, meaning he must show
"a reasonable probability that the district court would have imposed a lesser sentence
had the government" not breached the agreement. United States v. Jensen, 423 F.3d
851, 855 (8th Cir. 2005). The sequence of events in this case prevents Rendon from
showing he was prejudiced by the government's actions.



                                          -7-
       At sentencing the government argued Rendon was responsible for at least 30
pounds, and it did not argue for the higher PSR quantity of 300 pounds. The cutoff
between the base offense levels of 36 and 38 occurs at 15 kilograms of
methamphetamine, which is an amount slightly over 33 pounds. U.S.S.G.
§§ 2D1.1(c)(1), 2D1.1(c)(2). Thus, in arguing for a drug quantity of at least 30
pounds the government was not inconsistent with its level 36 estimate in the plea
agreement. After sustaining Rendon's objection to a 300 pound quantity but denying
his objection to at least 30 pounds, the district court made a finding that the evidence
supported the PSR calculation of a base offense level of 38 and denied Rendon's
objection to it. The court made this finding before the government took any action
allegedly in breach of the agreement; only afterwards did the court ask if the
government agreed with its calculation of a total offense of 40 (a base offense level
of 38 and a two level enhancement for possession of a dangerous weapon.) Since the
district court made its finding as to the base offense level before any alleged breach
occurred, Rendon has not established that it would have imposed a different sentence
had the government acted differently. See Jensen, 423 F.3d at 854–55.

       In his letters to the district court, Rendon denied responsibility for participating
in a conspiracy to distribute 500 grams or more of methamphetamine and argued for
a drug quantity finding of 50 to 200 grams, an amount significantly lower than the
one he had agreed to in his plea agreement. By writing these letters, Rendon
exhibited conduct inconsistent with acceptance of responsibility and potentially in
breach of his plea agreement. Moreover, Rendon has not demonstrated that he was
prejudiced by the government's having agreed to the district court's finding of a base
offense level higher than that contained in Rendon's plea agreement. On the record
made here, the district court did not plainly err in its findings and allocation of
responsibility.




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                             IV.

The judgment of the district court is affirmed.
               ______________________________




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