           Case: 12-13381   Date Filed: 05/29/2013   Page: 1 of 12


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13381
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:11-cr-00281-RBD-JBT-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

BRYAN ADRAIN COPELAND,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 29, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
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      After a guilty plea, Bryan Copeland appeals his total 264-month sentence for

wire fraud, aggravated identity theft, and making false claims against the United

States. Copeland argues, inter alia, that the government breached the plea

agreement by failing to recommend a three-level guideline reduction under

U.S.S.G. § 3E1.1 for acceptance of responsibility. After review, we vacate the

district court’s judgment and remand for resentencing.

                               I. BACKGROUND

A.    The Indictment

      In 2011, a federal grand jury issued a 38-count indictment against Copeland,

charging him with 11 counts of mail fraud, in violation of 18 U.S.C. § 1341; 16

counts of wire fraud, in violation of 18 U.S.C. § 1343; 9 counts of aggravated

identity theft, in violation of 18 U.S.C. § 1028A; and 2 counts of making false

claims against the United States, in violation of 18 U.S.C. § 287. The indictment

alleged that Copeland, with the help of other co-conspirators, engaged in a

prolonged tax fraud scheme by using stolen identities to file fraudulent tax returns

and obtain refunds.

B.    The Plea Agreement

      In 2012, Copeland entered into a written plea agreement with the

government, in which he agreed to plead guilty to one count of wire fraud (Count

27), one count of aggravated identity theft (Count 36), and one count of making a


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false claim against the United States (Count 37). In exchange, the government

agreed to dismiss the remaining counts of the indictment.

      It is undisputed that, before entering the plea agreement, the government was

aware of two pre-indictment incidents that were later used to enhance Copeland’s

sentence for obstruction of justice. Specifically, (1) in February 2010, after the

investigation into Copeland’s criminal activities commenced, Copeland attempted

to destroy evidence while fleeing from law enforcement officers, and, (2) in

September 2011, Copeland intimidated a potential witness by striking the witness

with his car.

      Despite knowing of these incidents, the government agreed to recommend a

two- or three-level reduction for acceptance of responsibility, pursuant to U.S.S.G.

§ 3E1.1. Specifically, the plea agreement provided:

                Acceptance of Responsibility – Three Levels

            At the time of sentencing, and in the event that no adverse
      information is received suggesting such a recommendation to be
      unwarranted, the United States will recommend to the Court that the
      defendant receive a two-level downward adjustment for acceptance of
      responsibility, pursuant to USSG § 3E1.1(a).          The defendant
      understands that this recommendation or request is not binding on the
      Court, and if not accepted by the Court, the defendant will not be
      allowed to withdraw from the plea.

            Further, at the time of sentencing . . . the United States agrees to
      file a motion pursuant to USSG § 3E1.1(b) for a downward
      adjustment of one additional level. The defendant understands that
      the determination as to whether the defendant has qualified for a
      downward adjustment of a third level for acceptance of responsibility
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      rests solely with the [government], and the defendant agrees that the
      defendant cannot and will not challenge that determination, whether
      by appeal, collateral attack, or otherwise.

(Emphasis added).

      The plea agreement also contained a separate “Substantial Assistance”

provision, pursuant to which Copeland agreed to “cooperate fully” with the

government’s investigation, and, in return, the government would “consider” filing

a motion for, inter alia, a downward departure under U.S.S.G. § 5K1.1.

      In a paragraph entitled “Sentencing Information,” the government reserved

its right (1) to provide all relevant sentencing information to the district court and

the U.S. Probation Office, and (2) “to make any recommendations it deems

appropriate regarding the disposition of this case, subject to any limitations set

forth herein.”

C.    Presentence Investigation Report

      After the district court accepted Copeland’s guilty plea, a probation officer

compiled the Presentence Investigation Report (“PSI”), calculating Copeland’s

guideline range. The PSI calculated a total offense level of 42, which included,

inter alia, a 2-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1.

The PSI applied this enhancement because of the two above incidents that occurred

before Copeland was indicted.




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       The PSI did not apply a § 3E1.1 reduction for acceptance of responsibility,

given the above two incidents and because Copeland “did not truthfully admit all

of his conduct and relevant conduct” and did not “voluntarily assist authorities

with the recovery of the fruits of the offense.”

       Copeland’s total offense level of 42 and his criminal history category of I

yielded an initial guideline range of 360 months to life imprisonment. Because the

combined statutory maximum sentences for wire fraud (Count 27) and making

false claims (Count 37) totaled 25 years (300 months), the guideline range for

those offenses became 300 months, pursuant to U.S.S.G. § 5G1.2(b). See 18

U.S.C. §§ 287, 1343. 1

D.     Objections to the PSI

       Copeland objected to the PSI’s failure to recommend a reduction for

acceptance of responsibility under § 3E1.1, noting that the government had agreed

to recommend a two-level reduction in the plea agreement. Copeland also

objected, among other things, to the two-level enhancement for obstruction of

justice.




       1
        In calculating Copeland’s guideline range, the PSI grouped together Count 27 (wire-
fraud) and Count 37 (making false claims), pursuant to U.S.S.G. § 3D1.2(d). Copeland’s
conviction on Count 36 (aggravated identity theft) mandated a consecutive minimum sentence of
two years, or 24 months. See 18 U.S.C. § 1028A(a)(1). The guideline sentence for that offense
was 24 months, pursuant to U.S.S.G. § 2B1.6, and was calculated separately.
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         The government did not object to the PSI or its failure to include the

acceptance-of-responsibility reduction. On the contrary, the government filed a

sentencing memorandum affirmatively arguing that (1) the obstruction-of-justice

enhancement should apply, given Copeland’s two pre-indictment incidents

mentioned in the PSI, and (2) the acceptance-of-responsibility reduction should not

apply.

         The government acknowledged that, in the plea agreement, it had agreed to

recommend a § 3E1.1 reduction for acceptance of responsibility. It argued,

however, that this “recommendation was included in light of the fact that the plea

agreement also contain[ed] provisions which would provide for a downward

departure motion pursuant to Section 5K1.1 of the Sentencing Guidelines, should

the defendant provide substantial assistance.” In other words, the government

appeared to argue that its agreement to recommend an acceptance-of-responsibility

reduction was tied to whether it also filed a § 5K1.1 substantial-assistance motion.

         The government further explained that, although an obstruction-of-justice

enhancement usually precludes an acceptance-of-responsibility reduction, both the

enhancement and the reduction may apply in “extraordinary cases.” Thus,

Copeland could have qualified for the § 3E1.1 reduction if he “provided full,

complete, and total cooperation which supported a Section 5K1.1 motion.”

According to the government, because no § 5K1.1 motion was forthcoming in this


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case, there were no extraordinary circumstances justifying a reduction for

acceptance of responsibility.

E.    Sentencing Hearing

      At the sentencing hearing, the government essentially reiterated the above

argument from its sentencing memorandum, stating that Copeland could have

qualified for an acceptance-of-responsibility reduction under § 3E1.1, even with

the enhancement for obstruction of justice, but, given Copeland’s lack of

cooperation with the government, the reduction was not warranted.

      The district court overruled Copeland’s objection to the obstruction-of-

justice enhancement, finding that the government established obstruction by a

preponderance of the evidence. The district court then upheld the PSI’s denial of

the reduction for acceptance of responsibility. While noting that Copeland

expressed remorse for his crimes, the district court stated:

      I don’t find a lot of acknowledgment of the scope of the fraud, the
      complications of the fraud to the extent that other people were
      involved in the criminal enterprise.

             I don’t find any discussion about the disposition of the proceeds
      of the fraud, which is particularly troublesome to the Court, and is
      oftentimes I think a very good barometer of the acceptance of
      responsibility; and I find all those things to be absent here.

The district court then adopted the PSI’s guideline calculations.

      In sentencing Copeland, the district court varied downward from the

applicable guideline range of 300 months and imposed a total sentence of 240
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months’ imprisonment on Counts 27 and 37 (wire fraud and making false claims).

The district court explained that the downward variance was justified in light of the

potential sentencing disparities between Copeland and other defendants involved in

Copeland’s tax fraud scheme. The district court also imposed a statutorily

mandated 24-month consecutive sentence as to Count 36, for a total sentence of

264 months in prison and 3 years of supervised release.

                                   II. DISCUSSION

A.     Plea Agreements

       “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008) (internal quotation marks

omitted). 2 We analyze the plea agreement according to the defendant’s reasonable

understanding on entering the plea. United States v. Rewis, 969 F.2d 985, 988

(11th Cir. 1992). If the government disputes the defendant’s understanding, we

use “objective standards” to determine the terms of the plea agreement. Id. An

ambiguous agreement “must be read against the government.” United States v.

Copeland, 381 F.3d 1101, 1105-06 (11th Cir. 2004) (internal quotation marks

omitted).

B.     Copeland’s Plea Agreement about Acceptance of Responsibility

       2
         We review de novo whether the government has breached a plea agreement. United
States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004).
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       In this case, the plea agreement stated that the government would

recommend a two-level reduction for acceptance of responsibility under § 3E1.1(a)

unless “adverse information is received suggesting such a recommendation to be

unwarranted.” At sentencing, the government presented no evidence of “adverse

information” received after the plea agreement was entered.

       Rather, the government argued, essentially, that Copeland was not eligible

for a § 3E1.1 reduction because he failed to provide substantial assistance to the

government such as to qualify for a downward departure motion under U.S.S.G.

§ 5K1.1. Yet nothing in the plea agreement conditioned the recommendation for a

§ 3E1.1 reduction on Copeland’s substantial assistance to the government (as

defined in § 5K1.1), and nothing in § 3E1.1 itself requires a defendant to provide

substantial assistance to be eligible for a reduction. See U.S.S.G. § 3E1.1. 3

Accordingly, the government breached the plea agreement when it failed to

recommend a two-level reduction under § 3E1.1(a) and affirmatively

recommended denying such a reduction.

       The government, however, did not breach the plea agreement by failing to

file a motion for an extra one-level reduction under § 3E1.1(b). The plea



       3
        On appeal, the government argues that Copeland’s lack of cooperation constituted the
“adverse information” that prevented him from qualifying for the acceptance-of-responsibility
reduction. We reject this argument. The plea agreement dealt with cooperation in separate
provisions, and nothing in the agreement conditioned the acceptance-of-responsibility
recommendation on such cooperation.
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agreement expressly stated that the determination as to whether Copeland qualified

for this additional one-level reduction “rests solely with the [government], and the

defendant agrees that the defendant cannot and will not challenge that

determination, whether by appeal, collateral attack, or otherwise.” Thus, Copeland

cannot now challenge the government’s discretionary determination about this

extra one-level § 3E1.1(b) reduction.

       In addition, it does not matter to the breach analysis whether the district

court would have actually followed the government’s recommendation and granted

a reduction for acceptance of responsibility. See Santobello v. New York, 404

U.S. 257, 262-63, 92 S. Ct. 495, 499 (1971) (remanding the case due to the

prosecution’s breach of a plea agreement, even though the sentencing judge stated

that the breach did not influence the sentence and there was no reason to doubt the

judge’s statement); Johnson, 132 F.3d at 630 (stating that “the sentencing judge’s

acts are not important” to the issue of breach because the government, “not the

court,” violated the plea agreement). 4



       4
         The government argues that any breach of the plea agreement was harmless error
because, even with the two-level reduction for acceptance of responsibility, Copeland’s guideline
range would have been 292 to 300 months, only 8 months less than the original 300-month range
for Counts 27 and 37. This argument fails. Assuming, without deciding, that a breach of the
plea agreement is subject to such harmless error analysis, the error here was not harmless. As
the government acknowledges, the two-level reduction under § 3E1.1(a) would have reduced
Copeland’s guideline range, albeit by a relatively small amount, and the district court did not say
that it would have imposed the same sentence with or without the reduction. See United States
v. Williams, 627 F.3d 839, 845 (11th Cir. 2010) (holding that a sentencing error was not
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C.     Obstruction of Justice Enhancement

       Copeland contends that the government also breached the plea agreement by

advocating for an obstruction-of-justice enhancement under § 3C1.1. We disagree.

The plea agreement contained no provision prohibiting the government from

recommending an enhancement for obstruction of justice. Indeed, the agreement

expressly reserved the government’s right “to make any recommendations it deems

appropriate regarding the disposition of this case, subject to any limitations set

forth herein.”

       We recognize that, according to the § 3E1.1 commentary, an obstruction-of-

justice enhancement “ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct.” U.S.S.G. § 3E1.1, comment. (n.4). The

same commentary also provides, however, that there may be “extraordinary cases

in which adjustments under both §§ 3C1.1 [obstruction enhancement] and 3E1.1

[acceptance reduction] may apply.” Id. Therefore, the fact that Copeland received

an obstruction-of-justice enhancement does not automatically or necessarily

prohibit him from receiving an acceptance-of-responsibility reduction.

       Moreover, the government entered the plea agreement with full knowledge

of Copeland’s pre-indictment conduct that was later used for the obstruction-of-



harmless because the district court “did not state that it would impose the same sentence even if
it erred in calculating the applicable advisory guideline range”).


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justice enhancement, and cannot now be excused from fully performing its

promises as to acceptance of responsibility. See United States v. Johnson, 132

F.3d 628, 630 (11th Cir. 1998) (“It is not the court’s role to determine if the

government made a wise choice in entering into the plea agreement. Instead, the

court is only responsible for ensuring the terms of a plea agreement are followed.”

(citation omitted)).

D.    Remedy

      Given the government’s breach of the plea agreement in failing to

recommend a two-level reduction under § 3E1.1(a), two remedies are available for

Copeland: (1) “specific performance” of the agreement before a different

sentencing judge, or (2) withdrawal of the guilty plea. Johnson, 132 F.3d at 631;

United States v. Foster, 889 F.2d 1049, 1056 (11th Cir. 1989) (“[W]hen the

government breaches an agreement, the defendant must either be resentenced by a

new judge or allowed to withdraw his plea, regardless of whether the judge was

influenced [by the government’s breach].”). Specific performance is appropriate

here because “no question exists that the plea was knowingly and voluntarily

entered,” and Copeland does not seek to withdraw his plea. See id.

      Accordingly, we vacate Copeland’s sentence and remand for resentencing

before a different judge, consistent with this opinion.

      VACATED AND REMANDED.


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