            Case: 13-10213   Date Filed: 02/05/2014   Page: 1 of 4


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10213
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:10-cr-00276-MMH-TEM-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                   versus



BILLY JAMES HARPER,
a.k.a. "BJ",

                                                          Defendant-Appellant.

                       ________________________

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

                             (February 5, 2014)

Before TJOFLAT, JORDAN and FAY, Circuit Judges.
                Case: 13-10213       Date Filed: 02/05/2014       Page: 2 of 4




PER CURIAM:

       Pursuant to a plea agreement, Billy James Harper pled guilty to Count One

of a multi-count indictment, which alleged, in Count One, that he and five others

were employed by and associated with a criminal enterprise, the “Guardians,” and

unlawfully participated in the affairs of the enterprise through a pattern of

racketeering activity, in violation of the Racketeering Influenced and Corrupt

Organizations Act, specifically 18 U.S.C. § 1962(c). According to the plea

agreement, Harper committed acts of racketeering by:

       (1) knowingly, intentionally, and maliciously threatening injury to a
       person with the intent to cause that person to do an act against his
       will in violation of Sections 836.05, 775.082, 775.087, 777.011,
       Florida Statutes(Racketeering Act One); (2) knowingly, willfully,
       and intentionally selling or delivering anabolic steroids, a Schedule
       Ill controlled substance in violation of Sections 893.13(1)(a)2,
       775.082, and 775.083, Florida Statutes (Racketeering Acts Nine,
       Ten, and Seventeen); and (3) knowingly entering a dwelling with
       the intent to permanently or temporarily deprive a person or owner
       of money or other property, and in the course of the taking using
       force, violence, assault, or putting in fear, and further in the course
       of the taking carrying or using a firearm in violation of Sections
       812.13, 812.135(1), 812.135(2)(a), 775.082, 775.083, 775.087,
       777.011, Florida Statutes (Racketeering Act Fourteen).
Plea agreement at 2. The District Court accepted Harper’s plea and sentenced him

to prison for a term of 100 months, within the applicable sentence range under the

Sentencing Guidelines, 84-105 months imprisonment.1




1
 A total offense level of 23 and a criminal history category V yielded a sentence range of 84-
105 months’ imprisonment. The maximum penalty prescribed by statute is life imprisonment.
18 U.S.C. § 1963(a).
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      Although the plea agreement Harper signed contains an appeal-waiver

provision, he appeals the District Court’s judgment. Harper claims that the

Government breached the plea agreement by recommending, under U.S.S.G. §

5K1.1, that the court reduce his offense level by four levels, instead of twelve, and

that the court impose a sentence at the high-end of the Guidelines sentence range,

105 months’ imprisonment. He also claims that his sentence of 100 months

constitutes cruel and unusual punishment in violation of the Eighth Amendment.

      Harper did not assert these claims in the District Court; rather, he presents

them for the first time in this appeal. To prevail, Harper must convince us that the

District Court committed plain error in failing to recognize that the Government

breached the plea agreement as he contends, and in sentencing him to prison for

100 months. See United States v. Smith, 459 F.3d 1276, 1282-83 (11th Cir. 2006).

      [A]n appellate court may, in its discretion, correct an error not raised at trial
      only where the appellant demonstrates that (1) there is an “error”; (2) the
      error is “clear or obvious, rather than subject to reasonable dispute”; (3) the
      error “affected the appellant's substantial rights, which in the ordinary case
      means” it “affected the outcome of the district court proceedings”; and (4)
      “the error seriously affect[s] the fairness, integrity or public reputation of
      judicial proceedings.” Puckett v. United States, 556 U.S. 129, ––––, 129
      S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted).


United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 2164, 176 L.Ed.2d

1012 (2010).




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      Harper points to nothing in the plea agreement that made it “clear or

obvious” that the Government’s conduct during the sentencing hearing constituted

a breach of the agreement; nor does he cite any precedent that would have made it

plain to the court that it was obligated to read through the plea agreement during

the sentencing hearing to ensure that the Government was not breaching any of its

terms. In short, the Government’s conduct did not constitute error, much less plain

error. As for his Eighth Amendment claim, Harper cites nothing for the

proposition that a 100 months’ sentence that is below statutory maximum penalty

and the applicable Guidelines sentence range violates the Amendment.

      AFFIRMED.




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