     Case: 19-50265    Document: 00515402496     Page: 1   Date Filed: 05/01/2020




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

                                                                        FILED
                                  No. 19-50265                       May 1, 2020
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                                            Plaintiff-Appellee

v.

ROBERT JOSEPH MCNABB,

                                            Defendant-Appellant


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


Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Robert McNabb pleaded guilty to possessing a gun after having been
convicted of a felony. He appeals his sentence, arguing that the court should
have awarded him an offense-level reduction for acceptance of responsibility
and failed to consider his request for a downward variance. But in his plea
agreement, McNabb waived his right to appeal the sentence. He tries to get
around the waiver by arguing that the government breached the agreement.
If he is right that the government did not live up to its end of the plea bargain,
then he would not be bound by his agreement to forego an appeal. United
States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). So the gateway issue to
this appeal is whether the government breached the plea agreement.
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                                 No. 19-50265

      McNabb contends that the government broke its promise to “not oppose”
a reduction for acceptance of responsibility. He did not make this argument in
the district court where the issue could have been sorted out. As a result, it is
not enough for McNabb to show that the district court made a mistake in not
holding the government to the plea agreement. We can correct an error that
was not raised in the district court only if, among other things, the error was
obvious. Puckett v. United States, 556 U.S. 129, 135 (2009).
      During the sentencing hearing the government said nothing about
acceptance of responsibility. That silence would seem to defeat McNabb’s
argument that the government opposed the reduction.          But his argument
depends on what happened before the hearing. We will thus recount the
sequence of events that led the court to deny him an acceptance-of-
responsibility reduction.
      The original presentence investigation report (PSR) recommended that
McNabb receive credit for accepting responsibility. The government filed an
objection to that PSR, urging a two-point enhancement for obstruction of
justice. See U.S.S.G. § 3C1.1. This request was based on McNabb’s conduct
before the plea, while he was in pretrial detention.           McNabb “sent a
threatening letter to a witness” and attempted to influence that witness’s
testimony. He also threatened to “smoke” the agent investigating his case
during a jailhouse telephone call. As if that were not enough, McNabb wrote
letters giving instructions for making methamphetamine.
      After receiving this information, the Probation Office recommended the
obstruction enhancement in a revised PSR.        The obstructive conduct also
caused Probation to change its mind about acceptance of responsibility. It no
longer recommended the reduction. That is consistent with the Sentencing
Guidelines’ view that receiving an obstruction enhancement “ordinarily



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                                  No. 19-50265

indicates that the defendant has not accepted responsibility for his criminal
conduct,” except in “extraordinary cases in which adjustments” for both
acceptance and obstruction may apply. U.S.S.G. § 3E1.1 cmt. n.4; see also
United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (per curiam).
The district court agreed with the revised PSR; it included the enhancement
for obstruction and denied the reduction for acceptance of responsibility.
      The close relationship between the obstruction and acceptance-of-
responsibility adjustments is McNabb’s argument for why the government
breached the plea.     It means, according to him, that advocating for an
obstruction   enhancement     was    essentially    opposing   an   acceptance-of-
responsibility reduction. McNabb can point to not just the Guidelines but also
the plea agreement to show the strong, inverse correlation between obstruction
and acceptance of responsibility. The agreement states that McNabb “will not
qualify” for an acceptance reduction if, among other things, he “engages in any
conduct which may support an upward adjustment under U.S.S.G. § 3C1.1,
Obstruction of Justice.” So while the Sentencing Guidelines provide that the
two adjustments can coexist (even if only in extraordinary circumstances), the
plea agreement says that obstructive conduct automatically prevents a credit
for accepting responsibility. The plea agreement also provides that McNabb’s
eligibility for the acceptance reduction would be determined based on his
conduct “from the time [he] enters the plea of guilty . . . through the sentencing
hearing.” It was thus improper, McNabb argues, for the government to use his
pre-plea obstructive conduct as a basis for opposing acceptance of
responsibility.
      The government’s main response is a simple but powerful one: it never
expressly opposed a reduction for acceptance of responsibility, and that
nonopposition is all that it promised. See United States v. Cluff, 857 F.3d 292,



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                                 No. 19-50265

300–01 (5th Cir. 2017). It does not matter in the government’s view whether
his obstructive conduct occurred before or after the plea. The government’s
position is that its seeking of an obstruction enhancement (whether based on
pre- or post-plea conduct) was not inconsistent with its promise to not oppose
an acceptance reduction. To further support that argument, the government
notes that the plea agreement allowed it to “bring its version of the facts . . .
to the attention of the United States Probation Office” and “dispute sentencing
factors and/or facts material to sentencing in the presentence report.” We have
held that such provisions are “broad enough” to allow the government to push
for an obstruction enhancement even when the government agreed to
support—rather than just “not oppose”—an acceptance-of-responsibility
reduction.   See id. at 300 (interpreting plea agreement that reserved the
government’s right “to set forth or dispute sentencing factors or facts material
to sentencing”). And the government is correct that this case is not like ones
in which the government agrees to the defendant’s total offense level and then
seeks an enhancement that would exceed that agreed-upon level. See, e.g.,
United States v. Munoz, 408 F.3d 222 (5th Cir. 2005).
      The government appears to have the stronger argument under our
caselaw. If the government can seek an obstruction enhancement even when
it agrees to recommend an acceptance-of-responsibility credit, see Cluff, 857
F.3d at 300–01, then it seems to follow that it can do the same when it merely
agrees not to oppose an acceptance reduction.
      But we need not definitively resolve whether the government breached
this plea agreement. At best, McNabb raises a close issue. Close calls do not
cut it for plain-error review. By definition, a close call cannot be the obvious
or plain error a defendant needs to show when asserting an error he did not
give the district court a chance to fix. Puckett, 556 U.S. at 135 (recognizing



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that a claim of error “subject to reasonable dispute” does not meet the “clear”
or “obvious” requirement). McNabb’s failure to get over the second hurdle of
plain-error review is not surprising. In one of the leading plain-error cases,
the Supreme Court recognized that the obviousness requirement “will often
have some ‘bite’ in plea-agreement cases.” Id. at 143 (explaining that the “the
scope of the Government’s commitments will on occasion be open to doubt”).
That is the case here. See United States v. Rosales, 612 F. App’x 778, 780 (5th
Cir. 2015) (per curiam) (holding there was no obvious error when the
government promised only “not to oppose” an acceptance reduction, advocated
for an obstruction enhancement, and was silent at sentencing on the
defendant’s acceptance of responsibility).
      Because McNabb is not entitled to relief on his claim that the
government breached the plea deal, his appellate waiver remains enforceable.
Gonzalez, 309 F.3d at 886. Accordingly, his challenges to his sentence must be
dismissed.
      AFFIRMED IN PART AND DISMISSED IN PART.




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