     Case: 18-11642      Document: 00515267183         Page: 1    Date Filed: 01/10/2020




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


                                      No. 18-11642
                                                                                 FILED
                                                                          January 10, 2020
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

              Plaintiff-Appellee

v.

CHARLES RAY FULMER,

              Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:18-CR-34-1


Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
PER CURIAM: *
       On May 29, 2018, Appellant Charles Ray Fulmer was charged in a
superseding information with one count of attempting to transfer obscene
material to a minor in violation of 18 U.S.C. § 1470. The next day, Fulmer pled
guilty pursuant to a written plea agreement in which he waived his right to
appeal.     At Fulmer’s sentencing, three of the victim’s family members
addressed the court and asked that Fulmer be given the maximum statutory


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 18-11642       Document: 00515267183         Page: 2     Date Filed: 01/10/2020


                                       No. 18-11642

sentence.    Afterwards, the government presented argument, during which
counsel made the following statement:
              As the Court is aware, Your Honor, the government
              entered into a plea agreement with Mr. Fulmer. I
              am—I believe I am ethically bound to not advocate for
              a variance or a departure, and I’ve represented to
              opposing counsel that I will not do that in court today.
              But the family has also asked me to put in context this
              plea agreement and the full scope of the defendant’s
              behavior, and I also believe that I’m ethically required
              to do so and I owe it to the victim’s family.

Fulmer was subsequently sentenced to the statutory maximum (120 months of
imprisonment) and four years of supervised release.
       Fulmer now appeals, arguing for the first time that the above-quoted
statement proves the government agreed, as part of the plea agreement, not to
seek an upward variance, and the government breached that agreement by
putting on witnesses who asked for a maximum sentence. Based on the alleged
breach, Fulmer contends his sentence should be vacated and the case
remanded to a different district court judge for resentencing. 1 We disagree and
affirm.
       Because Fulmer did not object to the Government’s alleged breach of the
plea agreement, our review is for plain error.               United States v. Casillas,
853 F.3d 215, 217 (5th Cir. 2017). Under plain error review, a defendant must
show a clear or obvious error that affected his substantial rights. Id. If that
showing is made, this court may exercise its discretion to correct the error,
provided the error “seriously affects the fairness, integrity or public reputation



       1Although Fulmer waived his right to appeal in the plea agreement, an appeal waiver
does not affect a defendant’s “ability to raise a breach argument because an alleged breach of
a plea agreement may be raised despite a waiver provision.” United States v. Roberts,
624 F.3d 241, 244 (5th Cir. 2010). Fulmer’s appeal is therefore properly before the court.


                                              2
    Case: 18-11642        Document: 00515267183        Page: 3     Date Filed: 01/10/2020


                                      No. 18-11642

of judicial proceedings.” Id. (quoting Puckett v. United States, 556 U.S. 129,
135, 129 S. Ct. 1423, 1429 (2009)).
      “In evaluating whether a plea agreement was breached, we apply
general principles of contract law.” United States v. Hebron, 684 F.3d 554, 558
(5th Cir. 2012). The court looks to the “language of the [plea agreement],
unless ambiguous, to determine the intention of the parties.” United States v.
Long, 722 F.3d 257, 262 (5th Cir. 2013) (quoting In re Conte, 206 F.3d 536, 538
(5th Cir. 2000)). Thus, when a plea agreement is unambiguous, we “generally
will not look beyond the four corners of the document.” Id. “The defendant
bears the burden of demonstrating the underlying facts that establish breach
by a preponderance of the evidence.” United States v. Roberts, 624 F.3d 241,
246 (5th Cir. 2010).        “If the Government breaches a plea agreement, the
defendant is entitled to specific performance of the agreement with sentencing
by a different judge.” United States v. Munoz, 408 F.3d 222, 226 (5th Cir.
2005).
      Neither party argues the plea agreement was ambiguous. Nor do the
parties dispute that the plea agreement contained no promise not to seek an
upward departure. The plea agreement did, however, contain a merger clause,
confirming that it represented the complete agreement between Fulmer and
the government. 2 Fulmer confirmed this at the sentencing hearing, testifying
that he had read the plea agreement, reviewed it with his attorney, was not


      2   The merger clause provided that

               This document is a complete statement of the parties’ agreement
               and may not be modified unless the modification is in writing
               and signed by all parties. This agreement supersedes any and
               all other promises, representations, understandings, and
               agreements that are or were made between the parties at any
               time before the guilty plea is entered in court. No promises or
               representations have been made by the United States except as
               set forth in writing in this plea agreement.


                                             3
    Case: 18-11642    Document: 00515267183     Page: 4   Date Filed: 01/10/2020


                                 No. 18-11642

promised anything to convince him to plead guilty outside of what was
contained in the plea agreement, and all the terms of his agreement with the
government were set forth in the plea agreement. Based on the four corners of
the agreement, therefore, the government was not contractually prohibited
from seeking an upward variance and could not have breached the plea
agreement by doing so.
      This would seem to be the end of the matter. But, as Fulmer points out,
this court has previously declined to limit its breach inquiry to the terms of a
plea agreement when evidence indicates the government made an extrinsic
promise that the defendant reasonably relied on in pleading guilty. See, e.g.,
United States v. Melton, 930 F.2d 1096, 1098–99 (5th Cir. 1991). Melton dealt
with a plea agreement that was transmitted with a cover letter from the
prosecutor stating that the government would recommend a downward
departure based on the defendant’s “full and complete debriefing and
substantial assistance to the government.” Id. at 1098. The promise contained
in the cover letter was not included in the plea agreement. Id. Although the
defendant ultimately pled guilty, the government failed to seek a downward
departure at sentencing, and on appeal, the defendant argued the
government’s failure to do so constituted a breach of the plea agreement. Id.
In considering the issue, this court declined to ignore the cover letter,
reasoning that “the government may neither misrepresent its intentions nor
renege on representations reasonably relied and acted upon by defendants and
their counsel in instances such as is here presented.” Id.
      Compare Melton to Long, where the prosecutor had emailed defense
counsel before the defendant’s guilty plea and promised not to seek a
leader/organizer enhancement at sentencing. Long, 722 F.3d at 259. As in
Melton, this promise was not contained in the plea agreement and was not



                                       4
    Case: 18-11642      Document: 00515267183   Page: 5   Date Filed: 01/10/2020


                                 No. 18-11642

complied with at sentencing. Id. at 261–62. However, Long distinguished the
case from Melton, finding that “the e-mail exchange was not attached to the
plea agreement, was completed weeks prior to [the defendant’s] guilty plea,
and copies thereof were not transmitted contemporaneously with the plea.” Id.
at 263–64. Pointing to the defendant’s declarations during the plea colloquy
that no extrinsic promises induced his guilty plea, we concluded that “reliance
on the e-mail exchange would be unreasonable in light of the plea agreement’s
merger clause stating that the written plea agreement constitutes the complete
agreement among the Government, [the defendant], and [the defendant’s]
counsel.” Id. at 264.
      This case is even weaker than the facts in Long.           Assuming the
government promised not to seek an upward variance, the record is unclear as
to when the promise was made. Nothing in the record indicates how the
promise was conveyed, what its terms were, or whether Fulmer relied on it in
pleading guilty. Unlike Melton and Long, where the documents containing the
promises were part of the record, we have before us only the government’s
allusion to some promise during the sentencing colloquy. Further, as in Long,
the written plea agreement included a merger clause, and Fulmer
unequivocally represented to the district court before pleading guilty that he
had not relied on any promises outside of those contained in the plea
agreement. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629
(1977) (“Solemn declarations in open court carry a strong presumption of
verity.”). Indeed, on appeal, Fulmer does not even argue he relied on the
government’s promise. Therefore, even if the government promised not to seek
an upward variance, it is unreasonable to conclude that Fulmer relied on that
promise in pleading guilty.




                                       5
    Case: 18-11642   Document: 00515267183   Page: 6   Date Filed: 01/10/2020


                              No. 18-11642

     For these reasons, the government did not breach the plea agreement,
and the judgement of the district court is AFFIRMED.




                                    6
