                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                          JUNE 30, 2011
                            No. 09-13285
                                                           JOHN LEY
                        Non-Argument Calendar                CLERK
                      ________________________

                D. C. Docket No. 08-00411-CR-J-24-HTS

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

WILLIAM RAYMOND MILLER, II,
a.k.a. Ray Miller,

                                                       Defendant-Appellant.

                      ________________________

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

                             (June 30, 2011)

Before EDMONDSON, CARNES and MARTIN, Circuit Judges.

PER CURIAM:
      William Raymond Miller, II appeals his convictions and 121-month

sentence for wire and mail fraud in violation of 18 U.S.C. §§ 1341 & 1343. Miller

contends that: (1) the government breached his written plea agreement by failing

to recommend a sentence at the low end of the sentencing guidelines and by

presenting evidence of his prior offenses at sentencing; (2) the district court’s

order directing him to pay restitution constituted a breach of his plea agreement;

(3) his sentence was based on false and erroneous testimony; (4) his sentence

constitutes “unfair and unreasonable” punishment because the district court

incorrectly calculated the loss amount resulting from the fraud; and (5) the district

court erred by striking his Rule 35(a) motion based on a violation of the district

court’s local rules without considering it on the merits.

                                          I.

      Miller, with the benefit of a written plea agreement, pleaded guilty to one

count of wire fraud and one count of mail fraud. On June 16, 2009, the district

court entered its judgment against him, sentenced him to 121 months

imprisonment and ordered him to pay restitution in the amount of $3,243,890.62.

      In the plea agreement the government agreed not to seek further charges

against Miller and to recommend that Miller receive a sentence at the low end of

the guideline range as calculated by the district court. The government reserved

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the right to disclose “all information concerning the background, character, and

conduct of the defendant, to provide relevant factual information, including the

totality of [his] criminal activities . . . not limited to the count(s) to which the

defendant pleads.” In exchange, Miller agreed to waive his right to appeal any

sentence imposed directly or collaterally, except if the sentence: (1) exceeded the

maximum permitted by statute; (2) was the result of an upward departure and/or

variance from the guideline range that the court establishes at sentencing; or (3)

violated the Eighth Amendment. The plea agreement also indicated that Miller

would be required to pay restitution to “any victim of the offense” pursuant to 18

U.S.C. § 3663.

      The government proffered that, beginning in March 2005 and continuing

until April 2008, Miller used various business entities to sell surety bonds on

construction projects throughout the country. In order to induce contractors to

purchase the bonds and project managers to accept them, Miller would falsely

represent that his companies were affiliated with legitimate insurance companies

that provided surety bonds. A president of one such legitimate insurance company

testified at Miller’s sentencing that Miller’s victims, often businesses in distressed

financial conditions, spent thousands of dollars on “worthless pieces of paper.”




                                            3
Over the course of his fraudulent scheme, Miller issued surety bonds in the

amount of $530 million, and he received payments in the amount of $22.5 million.

      The district court calculated Miller’s sentencing guideline range as 97–121

months, and the government recommended a sentence of 97 months, which the

government argued was “the least amount of time that he should serve.” Instead,

the court imposed a sentence of 121 months imprisonment, noting that Miller had

engaged in various fraudulent schemes throughout the country since 1992, he had

continued his current fraud after being confronted by law enforcement, and he had

perpetuated fraud in Maryland, been ordered to pay restitution, and failed to do so.

      The district court then held a hearing to determine the amount of Miller’s

restitution. Relevant to this appeal, David Thomas, president and owner of D.A.

Thomas Construction Company, appeared at the hearing claiming to be a victim of

Miller’s bond-scheme. Miller objected, stating that Thomas’ testimony related to

events that occurred after his plea of guilty and to a company with which he was

not affiliated. The court noted that Thomas’ testimony referred to events

occurring outside the timeframe set out in the plea agreement, however, the district

court still considered the testimony because the probation officer stated that a

“scheme to defraud” need not have a specific timeframe. The district court found

that the company involved in the fraud on Thomas “was a continuation of Mr.

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Miller’s fraudulent activity” and that “Thomas [was] a victim of the continuing

fraudulent scheme involving Mr. Miller.” The court ordered restitution to Thomas

in the amount of $259,495.00, and total restitution in the amount of

$3,243,890.62.

                                          II.

      Normally, we review de novo whether the government has breached a plea

agreement. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008).

However, because Miller did not allege a breach of the plea agreement at

sentencing, we review his claim only for plain error. United States v. Thayer, 204

F.3d 1352, 1356 (11th Cir. 2000). In order for this court to correct an error under

plain error review, “(1) there must be error; (2) the error must be plain; (3) the

error must affect the appellant’s substantial rights; and (4) the error must seriously

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

States v. Gallego, 247 F.3d 1191, 1196 (11th Cir. 2001) (quotation marks and

alteration omitted).

      In determining whether the government has breached a plea agreement, we

must first determine the defendant’s reasonable understanding of the government’s

promise at the time he entered into the plea agreement. United States v. Taylor, 77

F.3d 368, 370 (11th Cir. 1996). The government “is expected to be an advocate

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for the sentence set forth in the plea agreement.” United States v. Grandinetti, 564

F.2d 723, 727 (5th Cir. 1977).1 In Grandinetti we held that the government

breached its plea agreement with the defendant when the prosecutor stated that,

although the government was bound by the agreement, he doubted its legality or

propriety. Id. In other words, the government breaches a plea agreement when it

argues against the sentence it is bound by the agreement to recommend. Since

Grandinetti, the Supreme Court has clarified, however, that unless specified within

the agreement, “enthusiasm” for the terms of the agreement is not required.

United States v. Benchimol, 471 U.S. 453, 455–57, 105 S. Ct. 2103, 2104–05

(1985).

       Miller argues that the government breached his plea agreement by failing to

argue for a sentence at the low end of his guidelines range of 97 to 121 months

because the prosecutor argued that 97 months was the “least amount of time that

[Miller] should serve.” The government also stressed that:

       Any sentence below 97 months will fail to reflect the seriousness of the
       offense, promote respect for the law, deter the defendant and other like-
       minded individuals . . . and protect the public from further crimes of the
       defendant . . . . [A] sentence of 97 months is a just and deserving
       punishment for the crimes the defendant committed.



       1
        In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent the decisions of the former Fifth Circuit issued before October 1, 1981.

                                               6
Those comments, however, came in response to Miller’s request for a a downward

departure. The government made clear that it was recommending that Miller

receive a sentence of 97 months imprisonment, a sentence at the bottom of the

guidelines range. Therefore, the government did not breach the plea agreement.

      Miller also argues that the government breached his plea agreement by

presenting evidence of Miller’s previous frauds and by adopting an overly

aggressive approach at sentencing, describing his crimes as “sophisticated” and

condemning the “boldness and audacity of the fraud.” Miller’s argument is

without merit. The government does not breach a plea agreement by disclosing

pertinent factual information to the court so long as the plea agreement does not

forbid it and the government complies with the sentencing recommendation.

United States v. Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008). Nothing in

Miller’s plea agreement limited the amount or type of evidence the government

could introduce at sentencing, and the government complied with the agreed upon

sentencing recommendation.

                                         III.

      Miller also argues that the district court’s order of restitution constituted a

breach of the plea agreement because it related to an unadjudicated offense, which

had not been identified or contemplated within the plea agreement. This claim is

                                          7
without merit. Miller’s plea agreement indicated that he would be required to pay

restitution to “any victim” of his offenses, and the district court found that Thomas

was a “victim” because Miller’s fraudulent activity was ongoing. To the extent

that Miller argues the district court erred in determining that Thomas was a victim

of Miller’s offenses, such a claim is barred by the appeal waiver because a

restitution order is considered part of a defendant’s sentence. See 18 U.S.C.

§ 3663A(a)(1) (when sentencing a defendant . . . the court shall order . . . that the

defendant make restitution to the victim of the offense); United States v. Johnson,

541 F.3d 1064, 1067 (11th Cir. 2008) (“[A] waiver of the right to appeal a

sentence necessarily includes a waiver of the right to appeal the restitution

imposed.”).

                                         IV.

      Miller also raises two challenges to his sentence. First, he argues that his

sentence violates due process because the district court relied on false and

erroneous testimony to determine that his fraudulent activity continued after he

was under investigation by the government. Second, Miller argues that his

sentence is constitutionally disproportionate under the Eighth Amendment because

the district court incorrectly calculated the loss amount resulting from the fraud.




                                           8
The government contends that Miller’s sentencing claims are barred by his waiver

of appeal.

      We review the validity of a sentence appeal waiver de novo. Johnson, 541

F.3d at 1066. A sentence appeal waiver will be enforced if it was made knowingly

and voluntarily. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).

To establish that the waiver was made knowingly and voluntarily, the government

must show either that (1) the district court specifically questioned the defendant

about the waiver during the plea colloquy, or (2) the record makes clear that the

defendant otherwise understood the full significance of the waiver. Id.

      Miller entered into a valid sentence appeal waiver that bars his two

sentencing claims to the extent that they do not fall within one of the three narrow

exceptions to the waiver. The record indicates that Miller was specifically

questioned regarding his appeal waiver during his plea hearing, and he stated that

he understood that he was waiving his right to appeal his sentence. To the extent

that Miller argues that the appeal waiver is unenforceable because the government

breached his plea agreement, he has failed to show that any breach occurred.

Thus, insofar as Miller argues that he was deprived of due process based on the

district court’s consideration of false or erroneous testimony, and to the extent that

he challenges the district court’s calculation of the amount of loss from the fraud

                                          9
and the effect of that finding on his guidelines range, his claims are barred by his

appeal waiver.

      Although Miller’s contention that the application of the guidelines resulted

in a constutionally disproportionate sentence in violation of the Eighth

Amendment falls within an exception stated in the appeal waiver, it nevertheless

fails on the merits. The Eighth Amendment does contain “a narrow

proportionality principle that applies to noncapital sentences,” Ewing v.

California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185 (2003), and does forbid the

imposition of a sentence that is “grossly disproportionate” to the offense

committed, United States v. Raad, 406 F.3d 1322, 1324 (11th Cir. 2005).

However, “[o]utside the context of capital punishment, there are few successful

challenges to the proportionality of sentences.” United States v. Johnson, 451

F.3d 1239, 1242 (11th Cir. 2006). “In general, a sentence within the limits

imposed by statute is neither excessive nor cruel and unusual under the Eighth

Amendment.” United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005).

Here, Miller’s 121-month sentence falls well below the 20-year statutory

maximum applicable to his offenses, and his sentence is not otherwise “grossly

disproportionate” to his offenses in light of the magnitude of the fraud. See 18

U.S.C. §§ 1341, 1343; Moriarty, 429 F.3d at 1024.

                                         10
                                          V.

      The district court struck Miller’s Rule 35(a) motion to modify his sentence

upon the government’s motion based on its local rule, which provides that “[a]ny

party for whom a general appearance of counsel has been made shall not thereafter

take any step or be heard in the case in proper person, absent prior leave of Court.”

M.D. Fla. Rule 2.03(d). Miller argues that his due process rights were violated

because he was denied the opportunity to seek reconsideration of his sentence

despite the fact that three of his four attorneys had withdrawn and all of his

attorneys had indicated to him that they would not file any additional motions on

his behalf.

      It is undisputed that Miller was represented by counsel when he filed his pro

se Rule 35(a) motion. Accordingly, the district court properly struck his motion

pursuant to its local rules. Additionally, even if the district court erred by failing

to give Miller an opportunity to respond to the government’s motion to strike his

Rule 35(a) motion, any error was harmless because Miller’s motion was without

merit. Miller contended in his motion that the district court had not been informed

of certain facts related to the payment of restitution ordered in a Maryland

judgment against him, which the district court had considered when it sentenced

him. That claim was not cognizable in a Rule 35(a) motion because it did not

                                           11
relate to an “arithmetical, technical or other clear error” in sentencing that would

almost certainly require remand. United States v. Lett, 483 F.3d 782, 788 (11th

Cir. 2007) (a “clear error” is one that is “obvious,” which would “almost certainly

result in a remand of the case to the trial court for further action,” such as the

application of the wrong sentencing guideline). Accordingly, because the district

court properly followed local rules in striking Miller’s motion, and the Rule 35(a)

motion was without merit, the district court did not err by striking Miller’s motion.

      AFFIRMED.




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