           Case: 19-11825   Date Filed: 01/10/2020   Page: 1 of 20


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11825
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:18-cr-80166-DMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

NICHOLAS WUKOSON,

                                                          Defendant-Appellant.

                       ________________________

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

                            (January 10, 2020)

Before GRANT, TJOFLAT and FAY, Circuit Judges.

PER CURIAM:
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      Nicholas Wukoson appeals his 96-month total prison sentence for 6 counts

of possession of child pornography involving a prepubescent minor and 1 count of

witness tampering. We affirm.

                                I. BACKGROUND

      In 2017, a Federal Bureau of Investigation (“FBI”) agent discovered and

downloaded multiple images and videos depicting the sexual abuse of

prepubescent children, under age twelve, from a computer using a torrent program

to upload files to other users. An administrative subpoena confirmed that the

suspect computer was at an internet address corresponding to Wukoson’s home

address. The FBI executed a search warrant at Wukoson’s house and recovered

two laptop computers that Wukoson admitted belonged to him. After examining

the laptops, the FBI uncovered several videos and images of confirmed child

pornography and evidence of hundreds more videos and images of suspected child

pornography. Wukoson admitted that he was responsible for downloading the

child pornography on the two laptops; however, after the search warrant was

executed, Wukoson told his 13-year-old son, J.W., to take responsibility for the

child pornography because he would only get a “slap on the wrist.” When the FBI




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formally interviewed J.W., he told agents that, “it could have been me,” regarding

the child pornography on Wukoson’s laptops.1

       In a superseding indictment, a grand jury charged Wukoson with six counts

of possession of child pornography involving a prepubescent minor, in violation of

18 U.S.C. § 2252(a)(4)(B), (b)(2) (Counts 1-6), and one count of witness

tampering, in violation of 18 U.S.C. § 1512(c)(2) (Count 7). Wukoson executed a

plea agreement with the government in which he committed to plead guilty to

Counts 1-7 in return for the government’s promise to recommend a sentence of no

more than 4 years of imprisonment. The plea agreement provided that Wukoson’s

sentence would be imposed by the district court after it considered the Sentencing

Guidelines, the district court could impose a sentence above or below the advisory

guideline range, the district court was permitted to tailor the ultimate sentence in

light of other statutory concerns, the district court possessed the authority to

impose any sentence within and up to the statutory maximum, and Wukoson would

not be able to withdraw his guilty plea as a result of the sentence that the district

court imposed. Wukoson agreed to waive his appeal rights, with certain

exceptions.




1
  In conjunction with his plea agreement, Wukoson executed a written factual proffer setting
forth these undisputed facts.
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      The plea agreement reserved the government’s right to inform the court of

“all facts pertinent to the sentencing process, including all relevant information

concerning the offenses committed, whether charged or not, as well as concerning

[Wukoson] and [Wukoson’s] background.” The agreement also reserved the

government’s right to make any recommendation as to the quality and quantity of

punishment, subject only to the express terms contained in the agreement.

      The district court conducted a plea colloquy. Wukoson stated that he read

and discussed the plea agreement with his counsel before signing it, he understood

that the district court was obligated to calculate a guideline range according to the

Sentencing Guidelines and the court had some discretion to vary up or down from

the guideline range, he understood that the district court could sentence him up to

the maximum penalty authorized by law, and he could not withdraw his plea as a

result of the sentence imposed. While reviewing the provisions of the plea

agreement, the district court stated, “Paragraph five contains an unusual provision,

particularly since I usually follow plea agreements. The Government has agreed to

recommend that in terms of imprisonment, you be sentenced to no more than four

years imprisonment.” Wukoson stated that he talked to his lawyer and understood

that, as part of the plea agreement, he was giving up his right to appeal the

sentence unless it exceeded the maximum permitted by statute or the court

declined to follow the joint sentencing recommendation of 4 years of


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imprisonment. Wukoson agreed with the facts contained in the plea agreement,

confirmed that the child pornography was his and not J.W.’s, and pled guilty.

       At the end of the plea hearing, the district court stated, “I’m not going to

criticize the Government on the four-year -- you made your decision for the

reasons. I mean the guidelines were, in the PSI for one count, . . . 97 to something

months, so it is going to be hard . . . to get below the four years.” The district court

stated that it would follow the recommendation, although it was sure that “an

unusual set of circumstances led to it.”

       A probation officer submitted a presentence investigation report (“PSI”) and

calculated a total offense level of 31 and a criminal category of I, with a resulting

guideline imprisonment range of 108-135 months.2 The statutory maximum term

of imprisonment was 20 years for each of the 7 counts.

       Wukoson filed objections to the PSI and urged the district court to sentence

him “at or below” 4 years of imprisonment pursuant to the parties’ plea agreement.

He also attached letters of support from family and friends that urged the court to

show leniency in sentencing. The government, in response, filed a series of letters



2
  The PSI applied a base offense level of 18, under U.S.S.G. § 2G2.2(a)(1); a 2-level increase for
possessing material depicting a minor under the age of 12, under § 2G2.2(b)(2); a 4-level
increase for possessing material that portrays sadistic or masochistic conduct or other depictions
of violence, under § 2G2.2(b)(4)(A); a 2-level increase because the offense involved the use of a
computer, under § 2G2.2(b)(6); a 5-level increase because the offense involved 600 or more
images of child pornography, under § 2G2.2(b)(7)(D); a 2-level increase for obstructing justice,
under § 3C1.1; and a 2-level decrease for acceptance of responsibility, under § 3E1.1(a).
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from other relatives and acquaintances that highlighted the pain and anguish that

Wukoson had caused.

      At sentencing, Wukoson stated he had no objections to the PSI’s

computation of the guideline range but contested the inclusion of a criminal charge

against him that was later dismissed by the state of Florida. The district court

agreed to add a paragraph to the PSI that Wukoson denied the allegations. The

court found that Wukoson’s total offense level was 31, his criminal history

category was I, and the advisory guideline range was 108-135 months of

imprisonment.

      The government stated that its recommendation was 4 years of

imprisonment and detailed why it chose to agree to that recommendation. The

government stated that when the parties negotiated a plea agreement right before

trial, 4 years of imprisonment was what Wukoson requested as part of his

agreement to plead guilty. The government began prepping Wukoson’s son for

trial in anticipation that Wukoson would argue that J.W. was the one responsible

for the child pornography found on his computer. The government was worried

that testifying in front of his father and other family might do irreparable harm to

J.W.; for that reason, the government wanted to resolve the case without going to

trial and agreed to recommend a term of 4 years of imprisonment. The government

highlighted that child pornography was endemic in this country and that law


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enforcement is doing what it can to combat the problem. The government

additionally noted that the FBI, in investigating this case, connected to Wukoson’s

computer more than 23 times to download child pornography. The government

stated that if this case went to trial, it would have presented evidence that Wukoson

was at home when the child pornography was downloaded and that Wukoson’s son

was elsewhere. The government also stated that J.W. told his mother that he lied

to the FBI because Wukoson told him to lie.

      When the district court asked the government why it allowed Wukoson to

withdraw an earlier plea, the government explained that it was because it had

neglected to disclose a recorded interview with Wukoson’s son and it felt the most

ethical way to handle the situation was to allow Wukoson to withdraw his guilty

plea. The government confirmed that a PSI was prepared after Wukoson pled

guilty the first time and the resulting guideline range was 97-121 months of

imprisonment. The district court then said, “Well, I’m not criticizing you for the

position you took. I mean, I would not have allowed him to withdraw his plea, as I

think I have said before.” The court stated that when a defendant admits guilt

under oath in a plea colloquy, it expects to be able to rely on that. The court then

asked the government, “Isn’t [Wukoson] benefiting by what he did? I mean, how

do you escape the conclusion that by trying to withdraw his plea and then blaming

his son that he has not -- if I follow your agreement, that he hadn’t benefitted?”


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The government stated that it could not argue against that and confirmed that its

position was that it entered into the plea agreement because it wanted to spare J.W.

the trauma of testifying.

      The government stated that when it argues at a sentencing hearing for a child

pornography crime, it considers the children in the videos and images who are

being raped and sodomized and thinks about who is standing up for them. The

government argued that it did not want the court to think that the government did

not think that child pornography was a serious crime.

      Karyn Wukoson, Wukoson’s wife, addressed the court and stated that she

was worried for J.W., because of Wukoson’s betrayal, as well as for their five-

year-old daughter because she was the same age as some of the girls in the child

pornography on his computer; she asked the court to consider the maximum

punishment with supervised release to hold Wukoson responsible for his actions.

      David Crow, Karyn Wukoson’s friend, addressed the court and stated that he

did not believe that Wukoson was a good husband or father and he saw Wukoson

physically and verbally assault Karyn. After the search warrant was executed,

Wukoson told Crow that he hoped J.W. was not involved; Wukoson shortly

thereafter told Crow that J.W. had confessed. When the FBI interviewed Crow,

they told him that Wukoson said that Crow had slept at his house recently and

could have been involved since he worked with computers. Crow denied


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Wukoson’s allegations and told the FBI agents that Wukoson told him that J.W.

had confessed the night before. Crow asked the court to sentence Wukoson to a

minimum of 13 years because that was how long it would take for his daughter to

turn 18 years of age.

      Leah Trietiak, J.W.’s mother, addressed the court and read a letter from

J.W., which stated that Wukoson was in jail because of his own actions, Wukoson

tried to blame him and others to protect himself, and he could not forgive

Wukoson. Trietiak also read a letter from her 19-year-old daughter, who wrote

that Wukoson was angry about the criminal allegations he faced when she was

younger, Wukoson tried to turn J.W. against Trietiak and her parents by telling

J.W. they were bad people, and in the last year J.W. became withdrawn and

unhappy. Trietiak then stated that Wukoson blamed Karyn’s father and brother

and then told J.W. to take the blame for his actions. Wukoson was accused of

abusing Trietiak’s daughter 15 years ago; however, the charges were dropped

because Trietiak defended him.

      Wukoson then stated that he was not going to get into Trietiak’s statements

about the 15-year-old allegations, but he disputed her assertions. Wukoson argued

that the video of J.W.’s interview and J.W.’s change in position would have

created reasonable doubt if this case had gone to trial. Wukoson argued that Crow

repaired Wukoson’s computers in the past, which also could have raised


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reasonable doubt in a trial. Wukoson asked the court to accept the

recommendation in the plea agreement, because no one, especially Wukoson,

wanted J.W. to go through a trial. Wukoson argued that the recommended

sentence was reasonable in light of the circumstances in this case. The district

court stated that it understood Wukoson’s argument but asked whether Wukoson

created the reasonable doubt by blaming J.W. and Crow. Wukoson responded that

he had accepted responsibility. The court pointed out that Wukoson had accepted

responsibility in his first plea agreement and colloquy and that the court was still

getting letters from Wukoson’s family saying Wukoson did not commit the crime.

Wukoson stated that it was not him saying that and those people just could not

believe he had committed the crime.

      Wukoson’s mother, sister, and close friend also addressed the district court

on behalf of Wukoson, urging the court to show leniency. Wukoson then

addressed the court for allocution, stating that he took responsibility for his actions

and that he had made mistakes and was owning up to them. The district court

asked Wukoson what he meant by that because so far Wukoson had only said he

was sorry about what had happened to other people and had not said anything

showing the court that he understood what he had done. The court stated, “That’s

the problem I have with this. You seem like you are still persisting in this, you

know, it is everybody else's fault and I didn't do anything wrong.” Wukoson stated


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that he did not blame anyone else and he was sorry about what he had done and

how it had affected his friends and family.

      The district court then stated it had considered all the statements from the

parties, the PSI, the advisory guideline range, the 18 U.S.C. § 3553 factors, and the

plea agreement. The court noted that Wukoson had pled guilty twice, and the first

time Wukoson pled guilty the guideline range was 97-121 months of

imprisonment. The court stated that now, on the eve of trial, Wukoson pled guilty

again, saying that he takes responsibility for these actions. The court stated that, in

considering the § 3553 factors, child pornography has a tremendous impact on the

victims and that the reason sentences are strict is to try to remove the demand for

child pornography. The court said that when considering Wukoson’s personal

characteristics, the court believed that Wukoson refused to acknowledge what he

had done and, even though he said he was sorry, still appeared to blame other

people. The court noted that it had never seen a father try to blame his son for his

crime and it had a difficult time with that aspect of this case because family

members were usually trying to take the blame for another family member.

      The district court stated that it was troubled because Wukoson’s witness

tampering, in part, forced the government to agree to this plea deal. The court

noted that while it usually followed plea agreements, it was not bound to do so.

The court recognized that Wukoson’s appellate waiver applied only if the court


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followed the sentencing recommendation, but the court did not believe 4 years of

imprisonment was a just sentence under the circumstances of this case and it would

not follow the plea agreement for those reasons.

      The district court stated it would go below the guideline range because of the

parties’ efforts to resolve the case and sentenced Wukoson to 96 months of

imprisonment, consisting of concurrent terms of 96 months as to all 7 counts, and

15 years of supervised release. Wukoson objected, stating that he “reserv[ed] all

written and oral objections that the Court has mentioned and that [he] raised with

regard to the recommended sentence not being accepted by the Court.”

      On appeal, Wukoson argues that the government breached its plea

agreement, which required the government to recommend a 4-year sentence, by

presenting extensive argument and testimony that sabotaged the recommendation.

                                  II. DISCUSSION

      Generally, we review de novo whether the government has breached a plea

agreement. United States v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016).

However, if a defendant failed to raise the issue before the district court, then the

issue is reviewed only for plain error. United States v. De La Garza, 516 F.3d

1266, 1269 (11th Cir. 2008). Under plain error review, the defendant must show

that an error occurred, the error was plain, the error affected substantial rights, and

the failure to correct the error would seriously affect the fairness of the judicial


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proceeding. Id. For an error to affect substantial rights, the defendant generally

must show that it affected the outcome of the district court proceedings. Id.; see

also Puckett v. United States, 556 U.S. 129, 142 n.4, 129 S. Ct. 1423, 1433 n.4

(2009). If it is unclear whether the government’s breach affected the defendant’s

sentence, then the defendant has not shown plain error. De La Garza, 516 F.3d at

1270-71. Automatic reversal is appropriate only when a breach of the plea

agreement was established and an objection to the government’s breach of a plea

agreement was preserved at the district court. Hunter, 835 F.3d at 1329.

      A plea agreement is analyzed according to the defendant’s reasonable

understanding in executing the plea agreement. United States v. Rewis, 969 F.2d

985, 988 (11th Cir. 1992). To determine whether the government breached a plea

agreement, the court must determine the scope of the government’s promises.

United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004). Implied

obligations not agreed to by the parties will not be inferred. See United States v.

Benchimol, 471 U.S. 453, 455, 105 S. Ct. 2103, 2105 (1985) (“[O]ur view of Rule

11(e) is that it speaks in terms of what the parties in fact agree to, and does not

suggest that . . . implied-in-law terms [be] read into [a plea] agreement.”).

      There is no limitation placed upon the information that a district court may

receive for sentencing purposes concerning the background, character, and conduct

of a person convicted of a federal offense. 18 U.S.C. § 3661. The Supreme Court


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has noted that, at sentencing, a district court has broad discretion to consider “the

fullest information possible concerning the defendant’s life and characteristics.”

Pepper v. United States, 562 U.S. 476, 480, 131 S. Ct. 1229, 1235 (2011) (quoting

Williams v. New York, 337 U.S. 241, 247, 69 S. Ct. 1079, 1083 (1949)). When

imposing a sentence, the district court must consider the factors set out in 18

U.S.C. § 3553(a).

      Wukoson’s argument that he is entitled to automatic reversal is based on

cases where defendants preserved their objections in the district court and their

claims were therefore subject to de novo review on appeal. See Hunter, 835 F.3d

at 1329 (“Since we conclude that the government breached the plea agreement and

Hunter preserved his objection to that breach, reversal is required.”); see also

United States v. Taylor, 77 F.3d 368, 370-71 (11th Cir. 1996) (applying the

standard in Santobello v. New York, 404 U.S. 257, 262-63, 92 S. Ct. 495, 499

(1971), where the defendant objected in the district court to the government’s

breach of the plea agreement and was therefore entitled to de novo review); United

States v. Grandinetti, 564 F.2d 723, 727 (5th Cir. 1977) (also applying the standard

set in Santobello, 404 U.S. at 262-63, 92 S. Ct. at 499). However, Wukoson did

not preserve his claim because he never objected that the government violated its

obligations and never argued, nor asked the district court to rule on whether, the

government had breached the plea agreement. See De La Garza, 516 F.3d at 1269.


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      Wukoson objected below to the district court not following the sentence

recommendation but argues on appeal only that the government erred in breaching

the plea agreement. While he preserved any previous objections at the conclusion

of the sentencing hearing, the only objection Wukoson made at sentencing was to

the inclusion of a previous offense in the PSI. Accordingly, Wukoson’s claim is

subject to plain error review. See id.

      Wukoson fails to show there was plain error. The government was not

required to enthusiastically recommend a 4-year sentence. See Benchimol, 471

U.S. at 455-57, 105 S. Ct. at 2105. The plea agreement required that the

government recommend a sentence of no more than 4 years of imprisonment; it did

not expressly require the government to “advocate” for a 4-year sentence on

Wukoson’s behalf. See id., 105 S. Ct. at 2105. The government met this promise

by stating its recommendation for a 4-year sentence at sentencing. Unlike in

Rewis, where the government was permitted to comment only on facts relevant to

the current offense, the government in Wukoson’s plea agreement expressly

reserved the right to inform the court of “all facts pertinent to the sentencing

process, including all relevant information concerning the offenses committed,

whether charged or not, as well as concerning [Wukoson] and [Wukoson’s]

background.” See Rewis, 969 F.2d 985. Further, the plea agreement alerted

Wukoson, and Wukoson testified at his plea colloquy that he understood, that the


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district court was required to calculate and consider his guideline range and could

impose a sentence of up to 20 years of imprisonment.

      Furthermore, the government’s conduct at the sentencing hearing was not a

plain breach of the plea agreement. First, the government’s presentation of

witnesses at the sentencing hearing was a proper exercise of the rights reserved to

it in the plea agreement. See United States v. Horsfall, 552 F.3d 1275, 1283 (11th

Cir. 2008) (holding that the government’s presentation of victim impact evidence

did not breach the government’s agreement not to recommend an upward departure

from the Guidelines because the government had reserved the right to present such

evidence and did not recommend an upward departure). Nothing in the plea

agreement prohibited the government from presenting information that was

relevant to the § 3553 factors, including the history and characteristics of the

defendant as described by others. See 18 U.S.C. § 3553. The government in

Wukoson’s case, like the prosecutor in Levy, expressly recommended the agreed-

upon sentence, and while it presented witnesses, it did not elicit or endorse their

statements or their recommendations for a higher sentence. See United States v.

Levy, 374 F.3d 1023, 1032 (11th Cir. 2004), vacated and remanded on other

grounds, 545 U.S. 1101, 125 S. Ct. 2542 (2005). The witnesses were not parties to

the plea agreement and, therefore, were not bound by the agreement to recommend

a sentence of 4 years. The witnesses’ statements at the hearing were consistent


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with their letters, which were already part of the record, and addressed the

characteristics of Wukoson and the nature of the offense.

      Second, it is not plain that the government’s explanation of why it agreed to

recommend a 4-year sentence breached the plea agreement. While Wukoson

asserts that the government undermined its sentencing recommendation by

claiming that it was forced to enter the plea agreement because of Wukoson’s

witness tampering, this argument fails under our precedent. See id. (concluding

that the government did not breach the plea agreement when the prosecutor was

apologetic and implied it was forced to recommend the sentence by “grudgingly”

making the recommendation). Additionally, the government’s emphasis of the

circumstances behind the plea in response to the district court’s question of why

the government executed the plea agreement was not plain error because a district

court may inquire into the circumstances behind a recommended sentence to aid it

in exercising its sentencing discretion. See Grandinetti, 564 F.2d at 726.

      Third, it is not plain that the government’s arguments at sentencing breached

the plea agreement because those arguments did not expressly conflict with the

government’s promises. Wukoson’s reliance on other cases is again misplaced.

While the prosecutor in Grandinetti made a “grudging” statement that the

government was required to adhere to the plea agreement, the prosecutor

effectively argued against the agreement when he stated it was illegal and therefore


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breached the defendant’s reasonable understanding that the government had agreed

to make a “forceful and intelligent” sentencing recommendation. See id. at 725,

726-27. In contrast, Wukoson’s plea agreement required the government only to

recommend a sentence of 4 years of imprisonment. While the government’s

explanation of why it executed the plea agreement, its discussion about the

seriousness of child pornography, and its presentation of witnesses may have

implicitly undermined its sentencing recommendation, the government never made

an express statement that the sentence was improper.

      The government’s conduct was also distinguishable from Taylor, where the

government argued in support of the PSI’s higher recommended guideline range in

response to the defendant's objection, which expressly conflicted with the

government’s promise to recommend a 10-year sentence. See Taylor, 77 F.3d at

369. Here, the government and Wukoson agreed with the guideline range

presented in the PSI, and while Wukoson objected to the inclusion of an alleged

offense in the PSI, the objection did not affect the guideline range. Even though

Trietiak made statements regarding the alleged offense, the allegations were

already in the PSI, and as discussed above, the government did not elicit or endorse

her statement. The government’s argument regarding the seriousness of child

pornography is also distinguishable from the government’s conduct in Taylor. The

government here was arguably contrasting its general position on child


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pornography with this specific case, stating that its recommendation was “limited

to this case on these facts and to no other,” and its express sentencing

recommendation was not simply paying “lip service” to the terms of the plea

agreement. See id. at 370-71.

      In any event, even if the government plainly breached the plea agreement, he

must show that the breach affected his substantial rights. De La Garza, 516 F.3d at

1269. Wukoson cannot show that any breach of the plea agreement affected his

substantial rights because the record suggests that the district court would not have

imposed the recommended sentence absent the breach. See Puckett, 556 U.S. at

142 n.4, 129 S. Ct. at 1433 n.4 (“When the rights acquired by the defendant relate

to sentencing, the ‘“outcome”’ he must show to have been affected is his

sentence.”). The record does not support Wukoson’s argument that the district

court changed its mind about following the sentence recommendation only after

hearing the government’s argument and witnesses at sentencing. At the plea

hearing, the district court expressed several reservations with the sentencing

recommendation. While the district court indicated that it would follow the

recommendation, it also stated at the end of the plea hearing that it was “pretty

offensive” for Wukoson to plead guilty and then blame his son, it did not see that

there had been much acceptance by Wukoson, and Wukoson’s actions “were really

offensive from start to finish.”


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      The district court’s statements at sentencing focused on conduct by

Wukoson that would have been in the record through the presentence investigation

report and factual proffer even if the government had not said a word. Moreover,

after explaining its reasoning for not following the recommended sentence, the

district court still sentenced Wukoson below the guideline range because of the

parties’ efforts to resolve the case. Accordingly, Wukoson failed to show that the

government’s breach of the plea agreement, if any, affected his substantial rights.

      AFFIRMED.




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