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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                        No. 16-20116                                  FILED
                                                                                  May 18, 2017
                                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                                             Clerk

                                                    Plaintiff - Appellee,

v.

CURTIS JAMES CLUFF,

                                                    Defendant - Appellant.


                     Appeal from the United States District Court
                          for the Southern District of Texas


Before SMITH, and HAYNES, Circuit Judges, and JUNELL, District Judge. *
JUNELL, District Judge:
      Curtis Cluff pleaded guilty to conspiracy to possess with intent to
distribute cocaine under 21 U.S.C. §§ 841, 846, and was sentenced to
99 months’ imprisonment and 5 years of supervised release. Following his
sentence, Cluff filed a motion for new trial, alleging the Government breached
the plea agreement. The district court denied the motion and Cluff appealed.
We AFFIRM.
                                               I.
      In October 2014, Curtis Cluff was charged in a two-count indictment
with conspiracy to possess with intent to distribute cocaine under 21 U.S.C.



      *   District Judge of the Western District of Texas, sitting by designation.
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                                     No. 16-20116
§§ 841, 846, and aiding and abetting bulk cash smuggling under 31 U.S.C.
§ 5332 and 18 U.S.C. § 2. The events giving rise to those charges occurred in
2011; however, Cluff entered into an agreement with the Government in
January 2012 to work as a confidential informant. The Government states the
agreement provided that as long as he was working for the Government, he
would not be prosecuted. Cluff continued working in this capacity until March
2014 when he was hospitalized after being shot by a police officer who was the
subject of an investigation in which Cluff was assisting.
      In March 2015, Cluff moved to dismiss the indictment based on the
doctrine of equitable immunity. Therein, Cluff stated he believed that as long
as he cooperated with law enforcement, he would not be prosecuted at all. 1 He
also explained the only reason he ceased working as an informant was because
all contact with his supervising agents ceased after he was shot.                    The
Government filed a response in opposition to Cluff’s motion, acknowledging
that they had approached Cluff to be an informant, but denying any promise
or representation had been made by a law enforcement officer or prosecutor
that he would not be charged. Cluff was informed he would ultimately be
charged once his cooperation was complete.
      Upon the district court’s denial of the motion to dismiss, Cluff pleaded
guilty to count one—conspiracy to possess with intent to distribute cocaine—
and entered into a plea agreement with the Government. The agreement
provided that the Government would move to dismiss count two; recommend a
two-level downward adjustment for acceptance of responsibility “should the
defendant     accept   responsibility     as    contemplated     by   the    Sentencing
Guidelines”; recommend an additional one-level reduction based on the



      1  In the motion, he alleged that he was “offered the opportunity of freedom for him
and his family” if he worked as an informant.
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                                  No. 16-20116
timeliness of his plea; recommend he only be held accountable for 65.32
kilograms of cocaine; not seek a money judgment forfeiture; and recommend
he receive the benefits of the safety valve provisions of 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2, if eligible. In addition, the Government indicated it may file
a motion for departure under U.S.S.G. § 5K1.1 as a result of Cluff’s
cooperation. At the plea hearing, Cluff acknowledged that the terms of the
plea agreement were correct, no other promises had been made to induce him
to plead guilty, and he understood the terms of the plea agreement.
       The Presentence Investigation Report (PSR) assessed a base offense
level of 38 upon finding that Cluff was responsible for 615 kilograms of cocaine.
The probation officer also recommended a four-level enhancement based on
Cluff’s role as an organizer or leader, which resulted in a total offense level of
42.   With an offense level of 42 and a criminal history category of I, his
guideline range for imprisonment was 360 months to life.
       Cluff objected to the PSR to the extent it did not conform to the plea
agreement. He objected to the amount of cocaine as well as the leadership
enhancement and sought a reduction for acceptance of responsibility and
application of the safety valve provision. The Government filed a response,
recommending Cluff be given safety valve and that he be held accountable for
only 65.32 kilograms of cocaine, as agreed in the plea agreement.            The
Government also contested the leadership enhancement. Subsequently, the
Government filed a motion for sentence reduction pursuant to § 5K1.1 and
recommended Cluff receive a three-level reduction for acceptance of
responsibility, which would result in a recommended guideline range of 46 to
57 months’ imprisonment.
                                       II.
       At the sentencing hearing on December 1, 2015, Cluff accepted
responsibility for his actions. He then explained to the court that he became
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                                   No. 16-20116
an informant based on his understanding that he had entered into an
agreement with the DEA agents that if he worked for the Government, he
would not be charged at all. Assistant United States Attorney (AUSA) Ralph
Imperato denied ever having made such a promise, explaining that Cluff was
told he would go to prison, but the amount of time he would serve was
dependent upon his level of cooperation. The district judge asked Cluff who
had made him this alleged promise, to which he replied with “Mr. Imperato.”
Again, AUSA Imperato denied Cluff’s statement, accused him of lying to the
court, and asked the court to allow him to withdraw his guilty plea. Instead,
the district court recessed the hearing to give the parties time to resolve the
issue.
         The day before the second sentencing hearing, the Government filed a
modified motion for sentence reduction. The motion alleged that Cluff made
false statements under oath at the December 1 hearing and, therefore, he did
not accept responsibility as contemplated by the Sentencing Guidelines, as was
required by the plea agreement. The Government then withdrew its previous
recommendation concerning acceptance of responsibility and recommended he
be given a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1. 2
However, given Cluff’s substantial assistance as an informant, the
Government recommended a downward departure under § 5K1.1.
         The parties reconvened before the court on December 22, 2015. Again,
Cluff accepted responsibility. In addition, he stated that if he misconstrued or
misunderstood the agreement, he wanted to apologize to AUSA Imperato. At
the conclusion of the hearing, the district court sentenced him to 99 months of
imprisonment followed by 5 years of supervised release. In so ruling, the court



        This changed his recommended guideline range from 46 to 57 months to 80 to 99
         2

months, which included the departure under § 5K1.1.
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                                     No. 16-20116
declined to grant Cluff a reduction for acceptance of responsibility. Instead,
the court imposed an additional two points for obstruction of justice but
reduced his sentence by granting the Government’s motion for a § 5K1.1
departure.
       Cluff then filed a timely motion for new trial, arguing the Government
breached the plea agreement by recommending that the court deny acceptance
of responsibility and impose a two-level increase for obstruction of justice.
After a hearing, the district court denied Cluff’s motion for new trial, reasoning
that he had made a materially false statement at the December 1, 2015
hearing. 3 Accordingly, the court found the Government was not obligated to
recommend a downward adjustment for acceptance of responsibility and, thus,
did not breach the plea agreement.
                                           III.
      As a preliminary matter, the Government argues this appeal should be
dismissed as a result of the appellate waiver in the plea agreement. However,
the appeal may proceed notwithstanding the waiver. See United States v.
Purser, 747 F.3d 284, 289 (5th Cir. 2014) (stating a claim for breach of a plea
agreement may be raised despite the waiver provision of the plea agreement);
United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010).
      A district court’s ruling on a motion for new trial is reviewed for an abuse
of discretion. United States v. Piazza, 647 F.3d 559, 564 (5th Cir. 2011). A
claim that the government breached the plea agreement is reviewed de novo
unless the defendant failed to preserve his objection, in which case the claim
is reviewed for plain error. United States v. Kirkland, 851 F.3d 499, 502–03


      3  Although Cluff had made the same assertions before the December 1, 2015 hearing,
the district court determined that this was the first instance Cluff had made a “materially
false statement to a judge that would trigger an obstruction of justice enhancement and
require the withdrawal of the recommendation for acceptance of responsibility.”
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                                  No. 16-20116
(5th Cir. 2017); Purser, 747 F.3d at 290; Puckett v. United States, 556 U.S. 129,
131 (2009).
      Cluff did not object to the district court’s findings regarding acceptance
of responsibility or obstruction of justice before the conclusion of the second
sentencing hearing. Instead, he waited to raise the issues now on appeal in
his motion for new trial, which was filed on December 29, 2015, seven days
after the second sentencing hearing. Therefore, we find Cluff did not preserve
his objections, triggering plain error review. In order to succeed under plain
error, Cluff must show there was an error or defect that was clear or obvious
and affected his substantial rights. United States v. Escalante-Reyes, 689 F.3d
415, 419 (5th Cir. 2012) (en banc).
      Finally, we “accept[] the district court’s factual findings unless clearly
erroneous.’” United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011)
(quoting United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008)).
                                        IV.
      Cluff asserts the Government breached the plea agreement in two ways:
first, by withdrawing its recommendation that he be granted a downward
adjustment for acceptance of responsibility; and second, by requesting a two-
level increase for obstruction of justice.
      In interpreting terms of a plea agreement, courts are to apply general
principles of contract law. United States v. Long, 722 F.3d 257, 262 (5th Cir.
2013).   “[W]hen 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.” United States v. Saling, 205
F.3d 764, 767 (5th Cir. 2000) (internal quotations and citations omitted). To
determine whether the terms of the plea agreement have been violated, the
court must consider “whether the government’s conduct is consistent with the
defendant’s reasonable understanding of the agreement.” Pizzolato, 655 F.3d
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                                   No. 16-20116
at 409 (internal quotations and citations omitted).          The court should also
consider both express and implied terms of the plea agreement. See United
States v. Munoz, 408 F.3d 222, 227 (5th Cir. 2005).
      Cluff’s plea agreement provided that “[a]t the time of sentencing, the
United States agrees to recommend that the defendant receive a two (2) level
downward adjustment pursuant to U.S.S.G. Section 3E1.1(a) should the
defendant      accept   responsibility   as   contemplated    by   the   Sentencing
Guidelines.” The agreement also stated that “the United States reserves the
right . . . to set forth or dispute sentencing factors or facts material to
sentencing.”
      Section 3E1.1 of the Sentencing Guidelines permits a two-level decrease
in a defendant’s sentence so long as he clearly demonstrates acceptance of
responsibility. The Guidelines also authorize a court to increase the offense
level by two levels for obstructing justice if:
         (1) the defendant willfully obstructed or impeded, or
         attempted to obstruct or impede, the administration of
         justice with respect to the investigation, prosecution, or
         sentencing of the instant offense of conviction, and (2) the
         obstructive conduct related to . . . the defendant’s offense of
         conviction and any relevant conduct.

U.S.S.G. § 3C1.1. The commentary provides a non-exhaustive list of examples
of conduct covered by the enhancement, including “providing materially false
information to a judge or magistrate judge.”         U.S.S.G. § 3C1.1, comment.
(n.4(F)). The Guidelines defines material as “evidence, fact, statement, or
information that, if believed, would tend to influence or affect the issue under
determination.” U.S.S.G. § 3C1.1, comment. (n.6). The commentary of § 3E1.1
then states that “[c]onduct resulting in an enhancement under § 3C1.1
(Obstructing or Impeding the Administration of Justice) ordinarily indicates
that the defendant has not accepted responsibility for his criminal conduct.”

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                                        No. 16-20116
U.S.S.G. § 3E1.1, comment. (n.4). In other words, “[a]n obstruction of justice
charge almost always necessarily militates against an acceptance of
responsibility recommendation by the government and a sentence reduction by
the district court.” United States v. Quintero, 618 F.3d 746, 751–52 (7th Cir.
2010). For the reasons discussed below, both of Cluff’s theories concerning the
Government’s alleged breach fail.
                                               A.
      We first address Cluff’s claim that the Government breached the plea
agreement by withdrawing its recommendation that he receive acceptance of
responsibility credit. Cluff acknowledges that per the plea agreement, the
Government only agreed to recommend a downward adjustment for acceptance
of responsibility if he “accept[ed] responsibility as contemplated by the
Sentencing Guidelines.” We have previously held that the Government does
not breach a plea agreement by withdrawing a recommendation for, or failing
to recommend, acceptance of responsibility credit where the agreement, such
as the one at issue here, conditions the Government’s obligation to recommend
acceptance credit on the defendant “accepting responsibility as contemplated
by the Sentencing Guidelines,” and the defendant fails to do so.
      In United States v. Mejia, No. 93-2611, 24 F.3d 239 (5th Cir. 1994) (per
curiam) (table), 1994 WL 243287, at *1, 4 we held that the Government did not
breach the plea agreement by failing to recommend a three-point reduction for
acceptance of responsibility because the defendant “minimiz[ed] his role in the
offense during his interview with the probation officer.” Thus, the condition
necessary to trigger the Government’s obligation to recommend the reduction
promised in the plea agreement had not been satisfied.




      4   See also 5th Cir. R. 47.5.3 (unpublished opinion before 1996 is precedential).
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      In addition to the fact that Mejia is our binding precedent, our court has
issued several unpublished opinions reaching the same conclusion. We find
these cases both instructive and persuasive. In United States v. Hernandez-
Garcia, 442 F. App’x 136, 137 (5th Cir. 2011) (per curiam), the district court
found the defendant had not given truthful testimony at the sentencing
hearing and had, therefore, obstructed justice. As a result, he was not entitled
to a reduction of his sentence for acceptance of responsibility. We agreed,
reasoning that “[b]ecause Hernandez did not accept responsibility under the
Guidelines, the condition triggering the Government’s obligation not to oppose
Hernandez’ request for an adjustment was not fulfilled; the Government was,
therefore, not in breach of the agreement by opposing his request for an
acceptance-of-responsibility adjustment.” Id. (emphasis omitted); cf. United
States v. Bell, 417 F. App’x 420, 422 (5th Cir. 2011) (per curiam) (holding the
same where the defendant “offered exculpatory and irrelevant interpretations
of transactions and events; deflected responsibility; denied or discounted
relevant conduct; portrayed himself as a victim of unfair Government
treatment; and generally denied or minimized his culpability” at the
sentencing hearing).     A contrary unpublished opinion, United States v.
Antunez, 269 F. App’x 528 (5th Cir. 2008) (per curiam), finding breach of the
plea agreement, is error in light of Mejia.
      Here, the district court found Cluff obstructed justice by making a
materially false statement to the court “when he claimed the Government
informed him he would not be prosecuted.” As a result the court determined
the Government had not breached the plea agreement because Cluff had not
accepted responsibility as contemplated by the Guidelines. Whether Cluff
made a materially false statement to the judge is a fact issue and, unless
clearly erroneous, we defer to the district court. Pizzolato, 655 F.3d at 409.
Given the fact-intensive nature of this inquiry, the district court was in a better
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                                 No. 16-20116
position to make that determination, which was not clearly erroneous.
Accordingly, we defer to the district court’s determination that Cluff made a
materially false statement.     In light of Cluff’s statement, the condition
necessary to obligate the Government to recommend acceptance was never
triggered.   Thus the Government did not breach the plea agreement by
recommending that the district court deny acceptance of responsibility credit
to Cluff.
                                       B.
      We now turn to Cluff’s assertion that the Government breached the plea
agreement by moving to increase his sentence by two levels for obstructing
justice. Cluff argues the condition in the plea agreement created an implicit
promise not to argue for an enhancement. He directs the court to United States
v. Munoz, 408 F.3d 222 (5th Cir. 2005). In Munoz, we found there was an
implied promise that the Government would not argue for any enhancement
not included in the plea agreement.         The Government breached the plea
agreement by advocating for an enhancement for an abuse of trust after the
parties agreed to a specific guideline calculation, which did not include that
particular enhancement.      Id. at 227.     We held that “[e]ven though the
Government reserved the right to ‘dispute sentencing factors or facts material
to sentencing,’ the Government implicitly promised not to argue for an
enhancement that was not part of the plea agreement.” Id.
      However, Cluff’s case is distinguishable from Munoz. The controlling
factor in Munoz was that the parties stipulated to the total offense level. The
agreement also set forth a specific guideline calculation that included a list of
adjustments and enhancement that would apply to the defendant’s sentence,
and that list did not include the enhancement the Government attempted to
proffer at sentencing.     There were no such provisions in Cluff’s plea
agreement—the agreement did not stipulate to a total offense level or include
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                                  No. 16-20116
a list of potential enhancements. The agreement here merely provided that
the Government would recommend credit for acceptance if Cluff accepted
responsibility as contemplated by the Guidelines, and he failed to do so. Thus,
his reliance on Munoz is improper. See Purser, 747 F.3d at 294 (finding that,
unlike Munoz, there was no provision in the plea agreement regarding a total
offense level and therefore, there was “no implicit commitment on part of the
government as to any Guidelines provisions not mentioned in the plea
agreement”).
      Cluff’s agreement also stipulated that the Government retained the right
“to set forth or dispute sentencing factors or facts material to sentencing.” This
provision is broad enough to cover enhancements such as the one at issue here
regarding obstruction of justice. The same provision was included in the plea
agreement in Munoz, but the Government was precluded from relying on it
given that the parties stipulated to the total offense level. Because Cluff’s
agreement did not stipulate to a total offense level, the Government was
entitled to dispute facts material to sentencing and recommend enhancements
not specifically mentioned in the plea agreement.
      Under the circumstances presented here, it was not improper to deny a
reduction for acceptance of responsibility and impose an increase for
obstruction of justice. See United States v. Rodriguez, 942 F.2d 899, 902–03
(5th Cir. 1991) (upholding the district court’s denial of acceptance of
responsibility and imposition of an obstruction of justice enhancement). The
language of Cluff’s plea agreement was clear.       The Government was only
obligated to recommend a reduction for acceptance of responsibility if Cluff
accepted responsibility as contemplated by the Guidelines. He failed to do so.
As a result, the Government was not required to recommend acceptance credit
and did not breach the plea agreement by advocating against such a reduction.
In addition, the agreement provided that the Government retained the right to
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                                  No. 16-20116
bring up other sentencing factors or facts material to sentencing. There was
nothing in the agreement that prevented the Government from raising the
obstruction enhancement.       While there are “extraordinary cases in which
adjustments under both §§ 3C1.1 and 3E1.1 may apply,” this is not one of those
cases.     U.S.S.G. § 3E1.1, comment. (n.4).      Accordingly, we conclude the
Government did not breach the plea agreement.
                                        V.
         Next, Cluff argues judicial estoppel should have prevented the
Government from advocating for the obstruction of justice enhancement and
that its actions constituted prosecutorial vindictiveness. Given that neither
issue was raised in the district court, we review for plain error. United States
v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010).
                                        A.
         We first address his claim that the Government was judicially estopped
from arguing for an obstruction enhancement. Judicial estoppel is a doctrine
that “‘prevents a party from asserting a position in a legal proceeding that is
contrary to a position previously taken in the same or some earlier
proceeding.’” Gabarick v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 553 (5th Cir.
2014) (quoting Ergo Sci., Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)). At
the outset, judicial estoppel “has apparently never been applied against the
government in a criminal case.” Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir.
1995). However, we have previously assumed without deciding that judicial
estoppel can apply to the government in criminal cases. United States v.
McCaskey, 9 F.3d 368, 378–79 (5th Cir. 1993) (per curiam). Assuming that the
doctrine can apply to the government, to succeed Cluff must first establish that
“the position of the party to be estopped is clearly inconsistent with its previous
one; and [second,] that party must have convinced the court to accept that


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                                  No. 16-20116
previous position.” Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 398 (5th
Cir. 2003) (quotation omitted).
      According to Cluff, the Government threatened it would not file a § 5K1.1
motion and would withhold a recommendation for acceptance of responsibility
if he filed the motion to dismiss the indictment. Cluff disregarded the threat
and filed the motion to dismiss. Despite its threat, the Government filed
objections to the PSR that were consistent with the plea agreement,
recommended he receive a downward adjustment for acceptance of
responsibility, and filed the § 5K1.1 motion. It was not until Cluff’s statements
at the December 1, 2015 sentencing hearing that the Government changed
positions by filing a modified motion for sentence reduction seeking to
withdraw its recommendation for a reduction for acceptance of responsibility
and recommending an enhancement for obstruction of justice.
      Cluff is correct in his assertion that the position taken by the
Government before the December 1, 2015 hearing was inconsistent with its
position after the hearing.     Yet, he has not shown that the Government
convinced the district court to accept the previous position. Cluff relies on the
district judge’s statement during the December 22, 2015 hearing stating, “I . . .
hereby decide and, to whatever extent necessary, reverse the prior ruling
relative to acceptance,” to show that the court accepted the previous position
and intended to reverse it. However, an examination of the record shows the
court did not make any rulings during the December 1 hearing. Instead, the
district judge recessed the hearing and reset it for December 22 to give the
parties time to resolve the discrepancy. The acceptance of responsibility and
obstruction of justice issues were not decided until the December 22 hearing.
Thus, the Government was not estopped from recommending that the court
deny a reduction for acceptance of responsibility and to instead apply a two-
level increase for obstructing justice.
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                                      No. 16-20116
                                             B.
       As for Cluff’s prosecutorial vindictiveness claim, he acknowledges that
vindictiveness does not typically arise unless “a defendant receives a harsher
sentence after winning an appeal or habeas petition,” and that he has not
received a second sentence. Nevertheless, Cluff takes issue with the various
positions articulated by the Government from the time of his plea to sentencing
and argues these actions demonstrated vindictiveness. 5
       A defendant can prove vindictiveness in one of two ways: first, he can
present objective evidence to show that the prosecutor’s actions were designed
to punish him for asserting a legal right; and second, he may be able to show
sufficient facts that give rise to a presumption of vindictiveness. United States
v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008).                      A presumption of
vindictiveness only arises “where there exists a realistic likelihood of
vindictiveness.” Id. (internal quotations omitted). The presumption does not
arise if, after examining the prosecutor’s actions in the context of the entire
proceeding, “any objective event or combination of events in those proceedings
should indicate to a reasonable minded defendant that the prosecutor’s
decision . . . was motivated by some purpose other than a vindictive desire to
deter or punish appeals.” United States v. Wells, 262 F.3d 455, 466–67 (5th
Cir. 2001) (internal citation and quotation omitted). “Where there is no such
reasonable likelihood, the burden remains upon the defendant to prove actual
vindictiveness.” Alabama v. Smith, 490 U.S. 794, 799 (1989).
       There is no indication the Government’s actions were designed to punish
Cluff. First, he was not asserting a legal right. Second, the terms of the plea



       5 These various positions included the threats made regarding the motion to dismiss,
which despite the filing of the motion to dismiss, were not carried out until sentencing, and
the objections to the PSR, to the extent it did not conform to the plea agreement.
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                                  No. 16-20116
agreement provided that the Government would recommend a reduction for
acceptance of responsibility only if Cluff accepted responsibility as
contemplated by the Guidelines. Once Cluff stated at the December 1 hearing,
under oath, that he did not believe he would be charged at all as a result of his
cooperation, it was the Government’s belief that he had made a materially false
statement to the court, which entitled the Government to recommend against
acceptance of responsibility. Notably, the Government still recommended he
receive a reduction in his sentence pursuant to § 5K1.1, further evincing it did
not intend to punish him improperly. Accordingly, the record does not support
Cluff’s claim of prosecutorial vindictiveness.
                                       VI.
      For the foregoing reasons, we hold that the district court did not err in
denying Cluff’s motion for new trial. The district court’s judgment is, therefore,
AFFIRMED.




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