              Case: 12-11258    Date Filed: 04/23/2013   Page: 1 of 5


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-11258
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 9:11-cr-80083-DTKH-1



UNITED STATES OF AMERICA,

                                                                Plaintiff - Appellee,

                                       versus

DAVID WILSON,

                                                             Defendant - Appellant.
                           ________________________

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

                                  (April 23, 2013)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      David Wilson appeals his 110-month sentence after pleading guilty to

conspiracy to import at least 100 kilograms of marijuana into the United States, in
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violation of 21 U.S.C. §§ 960(b)(2)(G) and 963, and conspiracy to possess with

intent to distribute at least 100 grams of marijuana, in violation of 21 U.S.C.

§§ 841(b)(1)(B)(vii) and 846. Wilson claims that his sentence must be vacated

because the government breached the terms of his plea agreement when it

advocated for an aggravating role enhancement at sentencing.

      Upon conviction, Wilson faced a sentencing guideline range of 110 to

137-months imprisonment based on a total offense level of 28 and a criminal

history category of IV. The Probation Office’s Presentence Investigation Report

(PSI) calculated Wilson’s base offense level according to the government’s

recommendation that his “offense involv[ed] conspiracy to import at least 100

kilograms but less than 400 kilograms of marijuana,” and its recommendation that

he receive a combined three-level reduction for acceptance of responsibility under

United States Sentencing Guidelines § 3E1.1. The calculations also included the

Probation Office’s determination that Wilson qualified for a three-level

enhancement under § 3B1.1(b) for having been “a manager or supervisor (but not

an organizer) [of] the criminal activity.” At Wilson’s sentencing hearing, the

government advocated for application of the aggravating role enhancement. The

district court overruled Wilson’s objection to the enhancement and sentenced

Wilson to 110-months imprisonment on each of the conspiracy charges, to be

served concurrently, based on the guidelines calculations laid out in the PSI.


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       For the first time on appeal, Wilson argues that the government breached his

plea agreement by advocating for the aggravating role enhancement. 1 Where a

defendant fails to object to an alleged breach of a plea agreement before the district

court, our review is for plain error only. United States v. Romano, 314 F.3d 1279,

1281 (11th Cir. 2002). “We note plain error if (1) error occurred, and (2) the error

is plain, (3) affects the defendant’s substantial rights, and (4) seriously affects the

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

       “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). “Whether the government

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

understanding at the time he entered his plea.” United States v. Boatner, 966 F.2d

1575, 1578 (11th Cir. 1992). However, “we cannot enforce an agreement that was

never agreed on with specificity.” United States v. Al-Arian, 514 F.3d 1184, 1193

(11th Cir. 2008) (quotation marks omitted).

       Wilson’s argument that the government breached the terms of his plea

agreement amounts to an assertion that because the government agreed to stipulate

to the quantity of marijuana involved in his offense, and agreed to recommend that


1
  The government argues first that Wilson forfeited this claim by failing to raise it at his
sentencing hearing. We need not address the forfeiture issue because, for reasons explained,
Wilson’s claim fails on the merits.
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he receive up to a three-level reduction in his offense level for accepting

responsibility, “[i]t was reasonable for [him] to believe that these recommendations

were to the exclusion of any other guideline recommendation.” We are not

persuaded. Under the express terms of the plea agreement, in exchange for Wilson

pleading guilty to the two conspiracy charges, the government was obligated to

“recommend at sentencing that the court reduce by [at least] two levels the

sentencing guideline level applicable to [Wilson’s] offense” based on Wilson’s

acceptance of responsibility, and to recommend that the “quantity of [marijuana]

involved in the offense . . . [was] at least 100 kilograms but less than 400

kilograms.” The government fulfilled each of these obligations. The plea

agreement did not state that the government would avoid pursuing otherwise

applicable guidelines enhancements at sentencing; indeed, it reserved the

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

punishment,” “[s]ubject only to the express terms of any agreed-upon sentencing

recommendations contained in this agreement.” Further, the agreement included

an integration clause stating that “[t]his is the entire agreement and understanding

between the United States and the defendant,” and that “[t]here are no other

agreements, promises, representations, or understandings.”

      The express contemplation of possible guidelines enhancements, coupled

with the integration clause means that Wilson could not reasonably have assumed


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that the government would not advocate for an aggravating role enhancement at

sentencing, if applicable. See Al-Arian, 514 F.3d at 1192–93 (noting the inclusion

of an integration clause in the plea agreement to reject the appellant’s argument

that the government implicitly agreed to certain terms). Therefore, the government

did not breach the terms of the plea agreement.

      For these reasons, Wilson’s sentence is

      AFFIRMED.




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