     Case: 14-31118      Document: 00513180311         Page: 1    Date Filed: 09/03/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31118
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 3, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

TORRIE BRUMFIELD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CR-190-2


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
       Torrie Brumfield appeals from his jury trial conviction for conspiracy to
distribute and possess with the intent to distribute cocaine base, possession
with the intent to distribute cocaine base, and two counts of distribution and
possession with the intent to distribute cocaine base. He maintains that the
district court erred in determining that he violated an earlier plea agreement
and that the plea agreement should be vacated. Brumfield contends that the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-31118

Government did not establish that he did not render a substantial part of the
performance required under the plea agreement and that any non-compliance
substantially impaired the Government’s interests. He requests that this court
vacate his jury trial conviction, enforce the plea agreement, and remand the
case for resentencing.
      We review an alleged breach of a plea agreement de novo and accept the
district court’s factual findings regarding whether a breach occurred unless
they are clearly erroneous. United States v. Ballis, 28 F.3d 1399, 1409 (5th
Cir. 1994). The Government must establish by a preponderance of the evidence
that Brumfield materially breached the plea agreement. See United States v.
Castaneda, 162 F.3d 832, 837 (5th Cir. 1998). We apply general principles of
contract law to analyze the plea agreement. United States v. Cantu, 185 F.3d
298, 304 (5th Cir. 1999).
      Brumfield has not shown that the district court clearly erred in finding
that he breached the plea agreement. See Ballis, 28 F.3d at 1409. The record
reflects that he violated his obligations under the plea agreement by refusing
to cooperate and to be interviewed in preparation for a codefendant’s trial. See
United States v. Davis, 393 F.3d 540, 547 (5th Cir. 2004); United States v.
Donahey, 529 F.2d 831, 832 (5th Cir. 1976) (per curiam). Also, by evincing an
intention not to cooperate and to testify truthfully before a trial jury, Brumfield
anticipatorily repudiated the plea agreement. See Hentz v. Hargett, 71 F.3d
1169, 1174-75 (5th Cir. 1996). His refusal to cooperate and give the assistance
on which the Government conditioned its adherence to the plea agreement was
contrary to the Government’s reasonable expectations of the plea agreement
and, therefore, was a material breach. See Davis, 393 F.3d at 547; Cantu, 185
F.3d at 305. Brumfield’s claim that he cured any defect in his performance by
later showing a willingness to testify is not supported by the record; he instead



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                                 No. 14-31118

gave contradictory statements that were inconsistent with each other and the
factual basis to which he pleaded guilty and, thus, he deprived the Government
of the benefit of its bargain that he would cooperate and testify truthfully at
trial. See Davis, 393 F.3d at 547; Hentz, 71 F.3d at 1175.
      Because of Brumfield’s material breach, the Government was excused
from upholding the plea agreement. See Ballis, 28 F.3d at 1410; Hentz, 71 F.3d
at 1176. Therefore, the district court did not err in vacating the plea agreement
and releasing the parties from their obligations under it. See Ballis, 28 F.3d
at 1409, 1411; Hentz, 71 F.3d at 1176.
      AFFIRMED.




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