     Case: 13-11173   Document: 00512976554       Page: 1   Date Filed: 03/20/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                   No. 13-11173                  United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
UNITED STATES OF AMERICA,                                          March 20, 2015
                                                                   Lyle W. Cayce
             Plaintiff –Appellee                                        Clerk

v.

JESSE TYRONE CHAVFUL,

             Defendant–Appellant



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


Before SMITH, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      The defendant, Jesse Tyrone Chavful, pleaded guilty to conspiring to
possess cocaine with intent to distribute. The charge arose from a negotiation
to sell drugs in November 2011 and an actual sale in June 2012. Chavful and
the Government entered into a cooperation agreement: Chavful agreed to plead
guilty and provide information to the Government in exchange for a guarantee
that this information was “not to be used to increase Chavful’s Sentencing
Guideline level or used against Chavful for further prosecution.”
      At sentencing, the Government introduced information about a different,
intervening drug transaction—information that the Government acquired
under the protection of Chavful’s plea agreement. The Government relied on
this information to support its theory that the November and June
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                                 No. 13-11173
transactions were separate and that therefore Chavful should be accountable
for both. The district court sentenced Chavful based on a Guidelines range that
took into account the amount of drugs transacted in both November and June.
Chavful appeals his sentence.
                           I.    BACKGROUND
      Chavful agreed to plead guilty to conspiracy to possess with the intent to
distribute five kilograms or more of cocaine. In exchange, the Government
agreed to dismiss any remaining charges and to bring no additional ones. The
plea agreement supplement provides:
      The government agrees that USSG § 1B1.8 is applicable to
      Chavful. Any information provided by Chavful, other than that
      charged in the pending indictment, in connection with Chavful’s
      assistance to the United States, including debriefing and
      testimony, will not be used to increase Chavful’s Sentencing
      Guideline level or used against Chavful for further prosecution
      ....
      Chavful’s Presentence Investigation Report (PSR) assessed a base
offense level of 34 based on a determination that Chavful was responsible for
15 kilograms of cocaine and 1,200 pounds of marijuana. The PSR made this
calculation based on two incidents. First, Chavful participated in drug-related
telephone calls with a confidential informant on November 10, 2011. In
recorded conversations, Chavful discussed drug loads going north to the
Chicago area to his cousin and coconspirator, Samuel Hurd. Chavful told the
informant that Hurd would not be present for delivery but would be
responsible for payment. Chavful indicated that Hurd wanted 10 kilograms of
cocaine and 1,000 pounds of marijuana. Second, on May 23, 2012, Chavful met
with the informant and agreed to purchase 5 kilograms of cocaine and 200
pounds of marijuana. The meeting was audio- and video-recorded. Delivery of
the 5 kilograms of cocaine and 200 pounds of marijuana was made on June 6,
2012, at Chavful’s San Antonio t-shirt shop.
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                                No. 13-11173
      The PSR recommended that Chavful be held responsible for the 10
kilograms of cocaine and 1,000 pounds of marijuana discussed in the November
2011 phone call and for the 5 kilograms of cocaine and 200 pounds of marijuana
actually exchanged in June 2012. With a total offense level of 31 and a
Category III criminal-history score, Chavful faced a Guidelines range of 135 to
168 months’ imprisonment.
      The PSR also noted that, during the proffer interview, Chavful revealed
that he met with Hurd in the spring of 2012 and discussed obtaining cocaine
and marijuana. As a result of that conversation, Chavful obtained 30 pounds
of marijuana that were delivered to Hurd. Chavful was not held accountable
for the 30 pounds of marijuana because this information was protected by the
plea agreement.
      Both in writing and at sentencing, Chavful objected to the PSR. He
argued that he should not be held responsible for the drugs discussed during
the November 2011 conversation—a negotiation that he claims became a
completed agreement only when delivery was made in June 2012. Chavful
relied on U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1, whose
commentary provides that a defendant typically shall not be held accountable
for both the negotiated and the transacted amounts. See U.S.S.G. § 2D1.1 cmt.
n.5. In essence, Chavful claimed that the PSR double-counted the amount of
drugs attributable to him because the November and June incidents were in
fact related.
      The probation officer, in contrast, insisted the November and June
transactions were separate. The amount discussed in the November 2011
phone conversation was “an agreed-upon quantity and there was no
information to show that [Chavful] ever intended to cancel this order or to not
receive it.” The purchase made in June 2012 was a separate transaction
unrelated to the negotiated amount discussed “six months previously.”
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                                No. 13-11173
      At sentencing, the Government maintained that the November 2011 and
June 2012 amounts came from “two separate and distinct and independent
agreements.” It explained that because of the intervening sale in the spring of
2012, the November and June deals for which Chavful was held responsible
are best understood as separate agreements. Chavful objected to the
Government’s reliance on the intervening transaction, stating this information
was protected by the proffer agreement. The relevant colloquy reads as follows:
          MR. TROMBLAY [Attorney for the Government]: The facts
      show that there were at least three separate agreements.
          ....
          [S]ometime in the Spring [Hurd] shows up at Mr. Chavful’s T-
      shirt shop and says, hey, I need for you to get me something. And
      in the meantime he then acquires, as an intermediate, 30 pounds of
      marijuana . . . hence, we have a new agreement for 5 kilograms of
      cocaine and 200 pounds of marijuana. And these drugs were
      ultimately delivered to Mr. Chavful at his T-shirt shop on June the
      6th.
          Hence, we have three separate agreements. We have a separate
      agreement distinguished by time, destination, and drug quantity;
      10 kilograms of cocaine, a thousand pounds of marijuana to be
      delivered to Mr. Hurd in Chicago.
          ....
          Six months later, we have 5 kilograms of cocaine and 200
      pounds of marijuana, which was part of a separate and distinct
      agreement between Mr. Chavful and Mr. Hurd in San Antonio.
      And then separating those two in San Antonio is the delivery of 30
      pounds of marijuana in a blue ice chest.
          MS. HARPER [Attorney for Chavful]: Your honor, I really need
      to object, because Mr. Tromblay keeps throwing in information
      using it to augment the sentencing that he got in a proffer
      agreement.
          MR. TROMBLAY: That is not true.
          MS. HARPER: I find that in contravention of the proffer
      agreement.
          MR. TROMBLAY: That is not the intent or spirit of why we are
      discussing this. These facts are disclosed in the PSR. And I am not
      asking the Court to attribute the 30 pounds of marijuana to Mr.
      Chavful’s sentence. The only reason why I am bringing this up is
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                                          No. 13-11173
       to show, in essence, these were, indeed, separate and distinct
       agreements with intervening facts.
       The district court overruled Chavful’s objection to the drug-quantity
determination and agreed with the PSR’s recommendation that Chavful be
held accountable for both the amount of drugs discussed in June and those
transacted in November. The Government then filed a motion for a downward
departure pursuant to U.S.S.G. § 5K1.1, requesting a three-level departure.
The court granted the motion and departed three levels, resulting in a
Guidelines range of 97 to 121 months. Chavful was sentenced to 97 months in
prison to be followed by three years of supervised release. 1 He filed a timely
notice of appeal.
                                    II.    DISCUSSION
       This is a direct appeal of a federal criminal sentence. The district court
had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       “Whether the Government has breached a plea agreement is a question
of law we review de novo. The defendant has the burden of proving the
underlying facts by a preponderance of the evidence.” United States v. Harper,
643 F.3d 135, 139 (5th Cir. 2011) (citations omitted). 2 A defendant is entitled
to relief “even if the Government’s breach did not ultimately influence [his]



       1  Though the district court never explicitly accepted the plea agreement, its actions
indicated an implicit acceptance. See ROA.167; Fed. R. Crim. P. 11(c)(1)(C), (3)(A); United
States v. Morales–Sosa, 191 F.3d 586, 587–88 (5th Cir. 1999) (per curiam).
        2 The Government contends that this Court’s review is for plain error because Chavful

failed to preserve his objection. We disagree. “To preserve error, an objection must be
sufficiently specific to alert the district court to the nature of the alleged error and to provide
an opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). After
the Government made reference at sentencing to the spring 2012 marijuana transaction in
order to argue the November and June deals were separate, Chavful objected: “Your Honor,
I really need to object, because Mr. Tromblay keeps throwing in information using it to
augment the sentencing that he got in a proffer agreement.” This objection was timely and
sufficiently specific to preserve error.
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                                       No. 13-11173
sentence.” Id. If the Government has breached a plea agreement, the defendant
may elect a remedy: “specific performance, [i.e.,] requiring resentencing before
a different judge; or withdrawal of his guilty plea.” Id. Here, Chavful requests
resentencing.
      Chavful contends that his sentence should be vacated and his case
remanded because the Government breached the plea agreement by using
protected information to increase his sentence. “In determining whether the
terms of the plea bargain have been violated, the court must determine
whether the government’s conduct is consistent with the parties’ reasonable
understanding of the agreement.” United States v. Wilder, 15 F.3d 1292, 1295
(5th Cir. 1994) (quoting United States v. Valencia, 985 F.2d 758, 761 (5th Cir.
1993)).
      Here, the terms of the supplement to Chavful’s plea agreement include
the Government’s promise that “[a]ny information provided by Chavful, other
than that charged in the pending indictment, in connection with Chavful’s
assistance to the United States, including debriefing and testimony, will not
be used to increase Chavful’s Sentencing Guideline level.” The agreement
explicitly incorporates § 1B1.8 of the Guidelines. That provision states that
information obtained by the government as part of a cooperation agreement
“shall not be used in determining the applicable guideline range,” subject to
modification by the agreement and to written exceptions not at issue here. 3




      3   The relevant portions of § 1B1.8 and its commentary, application note 1, provide:
      (a) Where a defendant agrees to cooperate with the government by providing
      information concerning unlawful activities of others, and as part of that
      cooperation agreement the government agrees that self-incriminating
      information provided pursuant to the agreement will not be used against the
      defendant, then such information shall not be used in determining the
      applicable guideline range, except to the extent provided in the agreement.
      ....
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                                     No. 13-11173
Chavful proposes that the most natural interpretation of these provisions is
that the Government would not rely on protected information to advocate for a
greater sentence.
      Our caselaw supports Chavful’s interpretation. In United States v.
Gonzalez, under the protection of a plea agreement the defendant proffered
information that a Suburban carrying four individuals was meant to arrive on
the scene for a drug transaction. 309 F.3d 882, 884 (5th Cir. 2002). This Court
determined that the Government “used” information protected by a plea
agreement “to determine the applicable guidelines range” because “in the face
of the court’s doubts about whether Gonzalez had a leadership role, the
Government argued, more than once, that only Gonzalez knew of the Suburban
and this indicated he was a leader in the offense.” Id. at 887. We continued:
“Under the applicable preponderance of the evidence standard, keeping in
mind the reasonable expectation of Gonzalez that his agreements prohibited
information he provided . . . from being used against him absent any
exceptions, this agreement was breached.” Id. Similarly, in Harper, the plea
agreement offered use immunity to a cooperating defendant. 643 F.3d at 140.
This Court determined that, “[a]t the very least, Harper was reasonable in
understanding that the Government would not use his immunized statements
to advocate a higher guideline sentencing range.” Id. at 141. Importantly, we




      1. This provision does not authorize the government to withhold information
      from the court but provides that self-incriminating information obtained under
      a cooperation agreement is not to be used to determine the defendant’s
      guideline range. Under this provision, for example, if a defendant is arrested
      in possession of a kilogram of cocaine and, pursuant to an agreement to provide
      information concerning the unlawful activities of co-conspirators, admits that
      he assisted in the importation of an additional three kilograms of cocaine, a
      fact not previously known to the government, this admission would not be used
      to increase his applicable guideline range, except to the extent provided in the
      agreement.
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disapproved of the fact that “the Government offered Harper’s immunized
statements to fill the gap” in the PSR’s factual recitation. Id.
       In the present case, the record indicates that at least three times the
Government pointed to the protected, intervening spring 2012 transaction to
support the argument that the November and June incidents were unrelated.
   • “And in fact, we even have intervening circumstances, because, by the
     way, although these drug amounts are not attributed to Mr. Chavful
     because they are under a proffer agreement, nonetheless . . . the
     presentence report discloses that sometime in the spring that he even
     delivered 30 pounds of marijuana to Mr. Hurd; hence, they are
     independent. In fact, we have at least three independent agreements.”
   • “And in the meantime he then acquires, as an intermediate, 30 pounds
     of marijuana, as well as negotiates for an additional; hence, we have a
     new agreement . . . .”
   • “The only reason why I am bringing up [the 30 pounds of marijuana] is
     to show, in essence, these were, indeed, separate and distinct agreements
     with intervening facts.”

       As in Gonzalez, the Government referenced the information protected by
a proffer agreement in order to advocate that the defendant be held
accountable for a sentencing enhancement unrelated to the specific protected
conduct. See 309 F.3d at 887. And as in Harper, the Government supplied the
protected information to “fill the gap” between the two transactions in its
narrative of the underlying facts. See 643 F.3d at 141. 4 The text of Chavful’s
agreement, the Guidelines, and our precedent all support the conclusion that
the Government breached the plea agreement.




       4 The Government contends that it did not breach the plea agreement because it relied
on an already-known fact: Chavful’s PSR permissibly disclosed the spring 2012 drug
transaction. But “[a]s this court has held before, § 1B1.8 does not prohibit disclosure of
information provided in a plea agreement at sentencing, but rather, it prohibits this
information from being used to determine the applicable guideline range.” Gonzalez, 309 F.3d
at 887. Merely mentioning the intervening transaction was permissible; using it to advocate
for an increased sentence was a breach of the agreement.
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                                        No. 13-11173
       As the Government’s conduct was at odds with Chavful’s reasonable
expectation “that his agreements prohibited information he provided . . . from
being used against him,” Gonzalez, 309 F.3d at 887, we hold that the
Government breached the plea agreement, and we remand this matter for
resentencing. 5
                                 III.    CONCLUSION
       For the foregoing reasons, we VACATE Chavful’s sentence and
REMAND to the district court for reassignment to a different district judge
and for resentencing. 6




       5 Accordingly, we need not reach Chavful’s claim that the district court committed an
appealable “arithmetic error” error in making a drug-quantity determination under U.S.S.G.
§ 2D1.1.
       6 We reassign this case not because of any misconduct by the district court but because

in such cases “specific performance . . . requir[es] resentencing before a different judge,”
Harper, 643 F.3d at 139.
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