     Case: 18-10161    Document: 00515259716       Page: 1   Date Filed: 01/06/2020




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

                                                                     FILED
                                    No. 18-10161               January 6, 2020
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk


             Plaintiff - Appellee

v.

ROSALIO RAMOS TAPIA, also known as Rosalio Ramos, also known as
Chale, also known as Mocho,

             Defendant - Appellant



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


Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:
      Rosalio Ramos Tapia pleaded guilty, pursuant to a plea agreement, to
conspiracy to possess with intent to distribute a controlled substance, in
violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(viii). The district court
sentenced Tapia to 210 months of imprisonment and four years of supervised
release based on a drug-quantity finding of 45 kilograms or more of
methamphetamine.        Tapia appeals his sentence, contending that the
Government breached the plea agreement by using protected proffer
information to support a higher drug-quantity finding. We AFFIRM.


                                         I.
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                                    No. 18-10161
      After being indicted for conspiracy to distribute and to possess with
intent to distribute methamphetamine, Tapia entered into a proffer agreement
on August 24, 2016, with the United States Attorney’s Office for the Northern
District of Texas. Under the proffer agreement, Tapia was required to “tell the
truth” and was prohibited from, among other things, “withhold[ing] any
material information” and “seek[ing] to minimize [his] own or anyone else’s
criminal activity.” Law enforcement agents then interviewed Tapia, wherein
he estimated participating in transactions of methamphetamine totaling
approximately 21 kilograms.
      On September 14, 2016, Tapia pleaded guilty, pursuant to a plea
agreement, to a superseding information charging that he conspired to
distribute and to possess with intent to distribute 50 grams or more of a
mixture or substance containing a detectable amount of methamphetamine. 1
As part of the plea agreement, Tapia agreed to “give complete and truthful
information and/or testimony concerning his participation in the offense of
conviction.” In exchange, the Government agreed not to bring any additional
charges against Tapia based upon the conduct underlying and related to his
guilty plea.
      A supplement to the plea agreement provided that Tapia further agreed
to fully cooperate with the Government and to provide, in any proceeding,
information or testimony that is truthful and complete regarding his
participation in the offense of conviction and his knowledge of criminal
activities. The Government agreed to move for a downward departure under
U.S.S.G. § 5K1.1, in the event the Government, “in its sole discretion,”
determined that Tapia “cooperated and provided substantial assistance in the

      1  The August 24, 2016 proffer agreement contained a provision indicating that the
proffer agreement would terminate in the event that Tapia signed a plea agreement. Tapia
signed the plea agreement on September 5, 2016. Therefore, the plea agreement is the
controlling document for review in the instant appeal.
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                                      No. 18-10161
investigation or prosecution of others.” Most importantly to the dispute on
appeal, the supplement also contained a provision regarding information
proffered by Tapia:
       The government agrees that U.S.S.G. § 1B1.8 is applicable to the
       defendant. Any information provided by the defendant, other than
       that charged in the indictment, in connection with the defendant’s
       assistance to the United States, including debriefing and
       testimony, will not be used to increase the defendant’s Sentencing
       Guideline level or used against the defendant for further
       prosecution, if in the opinion of the United States Attorney the
       defendant has met all of the defendant’s obligations under the Plea
       Agreement and provided full, complete, and truthful information
       and testimony. However, nothing revealed by the defendant
       during the defendant’s debriefings and testimony would preclude
       the defendant’s prosecution for any violent crime.


       As calculated in the presentence report (PSR), Tapia’s base offense level
was 38, upon a finding that Tapia was responsible for a total of 67 kilograms
of methamphetamine. 2 After two two-level enhancements 3 and a three-level
reduction 4, Tapia’s total offense level of 39 combined with a category I criminal
history yielded a guidelines range of 262–327 months of imprisonment. Tapia
filed written objections to the PSR, including an objection to the PSR’s drug-
quantity finding, in which he denied responsibility for the 65 kilograms derived
from CD1’s statements to agents. The Government filed a response, in which
it included, among other exhibits, FBI reports in support of CD1’s credibility
and reliability, as well as Tapia’s proffer information. 5 Subsequently, the

       2  This drug-quantity finding was based on information from a cooperating defendant
(CD1) who alleged that Tapia and a coconspirator supplied CD1 with an estimated 65
kilograms of methamphetamine, and on a communication intercepted by law enforcement
which implicated Tapia’s responsibility for two additional kilograms of methamphetamine.
        3 Pursuant to U.S.S.G. § 2D1.1(b)(1) and § 2D1.1(b)(5), respectively.
        4 Pursuant to U.S.S.G. § 3E1.1.
        5 Notably, the Government, in attaching Tapia’s proffer information as an exhibit,

notified the court that the proffer information could not be used to enhance Tapia’s offense
level but was being offered as rebuttal evidence to Tapia’s objection.
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                                No. 18-10161
Government filed a motion under § 5K1.1, asking that Tapia’s total offense
level be reduced by two levels, from 39 to 37. Observing that such a reduction
would lower Tapia’s guidelines range to 210 to 262 months of imprisonment,
the Government requested a sentence of 210 months of imprisonment.
      At sentencing, Tapia reiterated his objection to the 65 kilograms of
methamphetamine relating to CD1. Tapia admitted that he had transactions
with CD1 but asserted that the transactions totaled no more than six to eight
kilograms. Tapia then contended that he should be held responsible for 5 to
15 kilograms of methamphetamine, a range that corresponded to a base offense
level of 34.   In addressing the information detailed in the Government’s
response to Tapia’s PSR objections, Tapia spoke about the Government’s use
of his own proffer. Tapia then contended that CD1’s information attributing
65 kilograms of methamphetamine to Tapia was not corroborated by the other
information presented by the Government.
      In response, the Government urged the court to consider the “entire
investigation” and began by reviewing the amounts of methamphetamine
identified throughout the PSR. The Government then asserted that Tapia’s
own proffer indicated he was responsible for more than 5 to 15 kilograms of
methamphetamine. From that proffer information, the Government identified
a minimum of 21 kilograms of methamphetamine attributable to Tapia. The
Government ultimately contended that the 65-kilogram quantity was
supported by a preponderance of the evidence and that Tapia’s objection to the
drug quantity should be overruled.
      The district court overruled Tapia’s objection to the PSR’s drug-quantity
finding, reasoning that the Government had shown by a preponderance of the
evidence that the drug quantity exceeded 45 kilograms of methamphetamine,
the threshold for a base offense level of 38.        The court granted the
Government’s § 5K1.1 motion, thereby reducing Tapia’s total offense level from
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                                  No. 18-10161
39 to 37. The statement of reasons reflects that the district court adopted the
PSR and PSR addendum without change. Tapia’s guidelines range after the §
5K1.1 departure was 210 to 262 months of imprisonment, and the district court
sentenced him to 210 months of imprisonment and four years of supervised
release. Tapia did not object to the sentence after its pronouncement. He
timely filed a notice of appeal. See FED. R. APP. P. 4(b)(1)(A)(i).
      On appeal, Tapia contends that the Government breached the plea
agreement by using information from his proffer to advocate for a higher
sentence.   First, Tapia argues that he preserved this issue for appeal by
objecting to the Government’s use of proffer information during the sentencing
hearing. Second, he asserts that the district court erred by relying on the
protected proffer information in making its drug-quantity finding, which
resulted in a higher base offense level and ultimately a higher sentencing
guidelines range, such that his substantial rights were affected.


                                        II.
      First, we consider the question of issue preservation, as it dictates which
standard of review to apply: de novo or plain error. If Tapia preserved the
issue, whether the Government breached the plea agreement is a question of
law that is reviewed de novo. See United States v. Purser, 747 F.3d 284, 290
(5th Cir. 2014). Conversely, if Tapia failed to preserve the issue, plain error
review applies. See Puckett v. United States, 556 U.S. 129, 133–35 (2009); see
also United States v. Hebron, 684 F.3d 554, 557–58 (5th Cir. 2012).
      To preserve an alleged error, a party must raise an objection that is
sufficiently specific to (1) alert the district court to the nature of the error and
to (2) provide an opportunity for correction. United States v. Chavful, 781 F.3d
758, 761 n.2 (5th Cir. 2015) (quoting United States v. Neal, 578 F.3d 270, 272
(5th Cir. 2009)); see Hebron, 684 F.3d at 558 (“[W]ithout a specific objection
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                                  No. 18-10161
alerting the district court that the government has breached the plea
agreement, the error is not preserved.”). Although a party is not required to
express its objection in “ultra-precise terms,” United States v. Pineiro, 470 F.3d
200, 204 (5th Cir. 2006), the objection must provide the district court an
opportunity to adjudicate the issue in first instance and cure or remediate any
alleged breach, Puckett, 556 U.S. at 140.
      At the sentencing hearing, Tapia spoke about the Government’s use of
his own proffer:
             However, the Government then goes on and—and they
      understand, and they made it real clear that they’re not to use any
      debriefing information against the Defendant, but in this case they
      contend it’s done to rebut any evidence that the Defendant would
      bring.
             So I’m contending, Judge, here that they’re saying that my
      client made reference to now about deals that he did with another
      individual in Tulsa to the tune of about 10 kilos, and that’s during
      debriefing. We’re not saying that didn’t happen, Judge. He also
      makes reference to another source that my client was utilizing that
      allowed him to transact and broker some activity in California.
However, Tapia did not explicitly assert that the Government’s disclosure of
the proffer information constituted a violation or breach of the plea agreement.
Tapia noted the Government’s contention that the proffer information could be
used as rebuttal evidence, but he did not clearly argue that the Government’s
contention was wrong. Because Tapia merely noted the prohibition without
clearly stating that the Government was violating the plea agreement, his
remarks fall short of those in Chavful, which were sufficient to preserve a
challenge to the breach of a plea agreement. See Chavful, 781 F.3d at 761 n.2.
      In the absence of a clear objection, our determination of the proper
standard of review now turns on whether those same remarks were otherwise
sufficiently specific to alert the district court to the alleged contravention. See
id.; Hebron, 684 F.3d at 558. Here, Tapia’s remarks did not put the district
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                                  No. 18-10161
court on notice of the Government’s alleged breach such that the court had the
opportunity to cure or remedy the error. Accordingly, Tapia failed to preserve
the issue and plain-error review applies.


                                       III.
      Under the plain-error standard of review, Tapia must show not only
error based on the breach of the plea agreement but also that the breach
constitutes clear or obvious error that affects his substantial rights. See
Puckett, 556 U.S. at 135 (recognizing that an error is not clear or obvious if it
is subject to reasonable dispute). To prove an effect on his substantial rights,
Tapia must show “a reasonable probability that, but for the error, he would
have received a lesser sentence.” Hebron, 684 F.3d at 559 (citing United States
v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)). Additionally, in United States
v. Mares, this court emphasized, “the Supreme Court has made it clear that
the defendant rather than the government bears the burden of persuasion with
respect to prejudice.” 402 F.3d 511, 521 (5th Cir. 2005) (citing United States v.
Olano, 507 U.S. 725, 734 (1993)). If Tapia makes such a showing, this court
should exercise its discretion to correct the error if the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.        See
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906 (2018); see also Puckett,
556 U.S. at 135.
      Here, whether the Government’s use of Tapia’s proffer information
constitutes clear or obvious error is of little consequence because, ultimately,
Tapia’s substantial rights were not affected. The district court, as in Hebron,
could have reasonably based its drug-quantity finding on the facts presented
in the PSR. See Hebron, 684 F.3d at 559. Although the district court did not
specifically articulate how the Government proved by a preponderance of the
evidence that the drug quantity was at least 45 kilograms, it did, in its
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statement of reasons, adopt the PSR and addendum without change. Indeed,
the district court must have considered at least some of the information from
the PSR to be credible and reliable because if it had not, the court could not
have made a drug-quantity finding higher than the 21 kilograms, via the
protected proffer information, plus the six to eight kilograms admitted at
sentencing, for a total of no more than 29 kilograms.        Furthermore, the
information from the PSR yielded a total drug quantity of 67 kilograms; so,
relying on that unprotected information alone, the 45-kilogram base amount
would have been, as the district court articulated, “certainly” met.
      Accordingly, Tapia has not carried his burden of proving that he would
have received a lesser sentence had the Government not referenced the proffer
information; consequently, his substantial rights were not affected.
      AFFIRMED.




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