     Case: 11-40127   Document: 00511753458    Page: 1       Date Filed: 02/09/2012




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

                                                                      FILED
                                                                    February 9, 2012

                                  No. 11-40127                       Lyle W. Cayce
                                                                          Clerk

UNITED STATES OF AMERICA,

                                      Plaintiff - Appellee

v.

ALBERTO LOZA-GRACIA,

                                      Defendant - Appellant



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


Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
        Alberto Loza-Gracia appeals the sentence imposed after he pled guilty to
one count of conspiracy to possess with intent to distribute cocaine pursuant to
a written, non-binding plea agreement. The plea agreement included a provision
that Loza-Gracia’s base offense level would be 26. The Presentence Investigation
Report (“PSR”) prepared by a United States Probation Officer acknowledged the
agreement for a base level of 26 but nonetheless recommended a base offense
level of 34 as a career offender based on Loza-Gracia’s prior drug convictions.
Loza-Gracia filed a sentencing memorandum challenging the PSR and alleging
a violation of the plea agreement based on the higher base offense level. The
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                                  No. 11-40127

district court overruled Loza-Gracia’s objection to the PSR, accepted the
recommendation for a base offense level of 34, and sentenced Loza-Gracia to 188
months of imprisonment. Loza-Gracia argues that the Government breached
the plea agreement when the PSR recommended a higher base level than that
agreed to by the Assistant U.S. Attorney (“AUSA”) and requests this court
remand for resentencing with instructions requiring the Government to adhere
to the agreed upon base level of 26.
      Because the plea agreement entered into by the AUSA did not bind the
Probation Office from making sentencing recommendations in the PSR nor did
it bind the district court, we affirm Loza-Gracia’s sentence.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Loza-Gracia pled guilty in April 2010 to conspiracy to possess with intent
to distribute cocaine     pursuant to a written plea agreement containing a
waiver-of-appeal provision. In the plea agreement, the AUSA and Loza-Gracia
stipulated to a base offense level of 26 under the Sentencing Guidelines, based
on the possession with intent to distribute at least 500 grams but less than two
kilograms of cocaine. The agreement further stated that “the Court is not bound
by these agreements” regarding the guideline recommendations and that the
“plea agreement is only binding on the United States Attorney’s Office for the
Eastern District of Texas and does not bind any other federal, state, or local
prosecuting authority.” The waiver-of-appeal provision in the agreement
provided that Loza-Gracia waived the right to appeal his conviction and sentence
and further waived the right to contest his sentence in any post-conviction
proceeding, but Loza-Gracia reserved the right to appeal a sentence in excess of
the statutory maximum or ineffective assistance of counsel that affected the
validity of the waiver.
      The PSR, observing that the offense involved at least 500 grams but less
than two kilograms of cocaine, set forth a base offense level of 26 pursuant to the

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plea agreement and U.S.S.G § 2D1.1(c)(7). The PSR also acknowledged that
Loza-Gracia was eligible for a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a) and (b), reducing his offense level to 23.
      However, the next section of the PSR, captioned “Chapter Four
Enhancements,” recalculated Loza-Gracia’s offense level based on two prior drug
convictions in his criminal history. Based on these prior offenses, the PSR
recommended a higher base offense level of 34 because Loza-Gracia qualified as
a career offender under U.S.S.G. § 4B1.1. After applying the same three-level
reduction for acceptance of responsibility, the PSR’s recommended offense level
was 31. The recommended sentencing range was 188 to 235 months of
imprisonment based on an offense level of 31 and a criminal history category of
VI. For comparison, the recommended sentencing range for an offense level of
23 and a criminal history category of VI would have been 92 to 115 months of
imprisonment. Under 21 U.S.C. § 841(b)(1)(B), the statutory minimum sentence
was five years; the statutory maximum term was forty years.
      Loza-Gracia did not file objections to the PSR, but he filed a sentencing
memorandum that the district court construed as an objection. Defense counsel
argued at sentencing that the plea agreement had been violated when the PSR
recommended a higher base offense level than that agreed to by the parties:
      It’s our position that when you change the base level offense from 26
      to the career offense level of 34, that that is in violation of the plea
      agreement. I know that it’s not exactly the same fact situation as
      the Roberts case; however, I do believe the probation officer, because
      it is part of the government, if they don’t leave the base offense level
      at 26, it is a violation by the government of the plea agreement
      itself.
      The district court verified that Loza-Gracia did not contest the validity of
the three prior felonies noted in the PSR. While not contesting the validity of the
prior convictions, defense counsel argued the prior convictions should only be



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used to increase his criminal history but not be used to change the base offense
level to 34 as a career offender.
      The court also confirmed that Loza-Gracia’s position was that because the
probation department was an agency of the Government, the probation
department violated the plea agreement by recommending a new base offense
level of 34 instead of the agreed level of 26, even though the probation
department was not a party to the plea agreement. Defense counsel explained
that he believed that the AUSA had the authority to bind the Government as a
whole, meaning both the U.S. Attorney’s Office and probation services, and did
so in this case. The Government responded simply, stating: “We stand by our
plea agreement.” The court denied Loza-Gracia’s objection, reasoning that the
probation department was not bound by the plea agreement, and the United
States Attorney’s Office had made no argument that would run afoul of the
agreement, but noting that the issue was an appellate point that Loza-Gracia
could explore. After adopting the PSR, the court sentenced Loza-Gracia to 188
months of imprisonment, the lower end of the recommend guidelines range, and
a four-year term of supervised release. Loza-Gracia filed a timely notice of
appeal.
      On appeal, Loza-Gracia renews his argument that the Government
breached the plea agreement when the PSR recommended a base offense level
of 34 instead of 26 and requests “that the Government be ordered to specifically
perform his plea agreement and that the case be remanded for resentencing
before a different judge.” He also argues that the career offender enhancement
is not a guideline adjustment to a base offense level but is instead a new base
offense level. The Government concedes that the career offender enhancement
is not a guideline adjustment but instead constitutes a new base offense level.
Thus, the only question on appeal is whether the probation office’s



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recommendation for a base offense level of 34 in the PSR constituted a breach
of the plea agreement between Loza-Gracia and the AUSA.
                         II. STANDARD OF REVIEW
      This court reviews “a claim of breach of a plea agreement de novo,
accepting the district court’s factual findings unless clearly erroneous.” United
States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007). When assessing whether a
plea agreement has been violated, this court applies general principles of
contract law and considers “whether the government’s conduct is consistent with
the defendant’s reasonable understanding of the agreement.” Id. at 387–88
(quoting United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993)). The
defendant bears the burden of demonstrating a breach of the agreement by a
preponderance of the evidence. Id. at 387.
                                III. ANALYSIS
      Loza-Gracia, in essence, argues that he was the victim of a bait-and-switch
at the hands of the AUSA and United States Probation Office. By reaching an
agreement with the AUSA regarding a base offense level, Loza-Gracia believed
he had reached an agreement with the Government generally and that he could
only be sentenced according to the agreed upon base offense level.
      However, Loza-Gracia’s belief was mistaken and there was no bait-and-
switch. The well-established separate organizational structures of the U.S.
Attorney’s Office and the U.S. Probation Office, combined with the plain
language used in the plea agreement and colloquy, make it clear why the
agreement on a base offense level in a plea agreed to by the AUSA is not binding
on either the Probation Office or on the district court. Unlike the U.S. Attorney’s
Office, which is organized under the executive branch of the federal government,
“the United States Probation Office is a branch of the federal judiciary and ‘an
investigatory and supervisory arm’ of the sentencing court.” United States v.
Talbert, 501 F.3d 449, 453 (5th Cir. 2007); see also United States v. Davis, 151

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F.3d 1304, 1306 (10th Cir. 1998) (noting the probation office and sentencing
court maintain a close working relationship and that probation officers are
permitted to communicate ex parte with the court). Thus, under general
federalism principles, the U.S. Attorney’s Office, as a member of the executive
branch, does not have the authority to bind the Probation Office, as a member
of the judiciary branch, with respect to sentencing recommendations.
      Loza-Gracia was informed both in the plea agreement itself and during his
plea colloquy that the court, and therefore by extension the Probation Office, was
not bound by the plea agreement. The agreement used separate terms to refer
to the U.S. Attorney’s Office and the Probation Office, using “the Government”
when discussing the former and the full name “United States Probation Office”
when discussing the latter. The agreement also included a warning that it “is
only binding on the United States Attorney’s Office for the Eastern District of
Texas.”
      In the plea colloquy, the court reviewed the specific language with Loza-
Gracia and, with respect to the Sentencing Guidelines stipulations, explained
that while there was an agreement with the Government on the base offense
level, stipulations were still subject to recommendations by the Probation Office.
The court also verified that Loza-Gracia understood the language in the plea
agreement, that the court was not bound by the agreement, and that the court
would not be able to determine a sentence until the Probation Officer completed
a PSR and both he and the U.S Attorney had the opportunity to challenge the
PSR. Finally, the court explained explicitly that the sentencing guidelines were
not binding on the court and the sentence imposed could be different from “any
estimate your attorney, the Government, or the probation officer may have given
you.” Given these clear warnings, Loza-Gracia was warned that his sentence
was not explicitly tied to the agreed upon base offense level of 26 and could be
adjusted based upon the findings of the Probation Office and the district court.

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      Additionally, the primary case relied upon by Loza-Gracia, United States
v. Roberts, 624 F.3d 241 (5th Cir. 2010), and his other cited cases involving
alleged breaches of plea agreements, are easily distinguishable. In Roberts, the
court held that the Government’s support and advocacy for sentencing as a
career offender violated a non-binding plea agreement in which the parties had
agreed to a base offense level of 30. Id. at 243. The PSR acknowledged the
agreement for a base level of 30 but also recommended the base level be
increased to 37 because Roberts qualified as a career offender. Id. At sentencing
the Government actively argued in support of applying the career offender
enhancement, which this court found was a breach of the plea agreement. Id. at
245–46. Moreover, the court in Roberts acknowledged there was a significant
difference between an AUSA advocating for a base level higher than that agreed
to in a plea and the PSR or district court unilaterally arguing for or applying the
career offender provision. Id. at 248 n.2.
      Here, the AUSA at the sentencing hearing did not voice any support or
advocate for the application of the career offender provision but instead simply
maintained that the Government stood by the plea agreement. Considering the
U.S. Attorney’s Office does not have control or oversight of PSR
recommendations made by U.S. Probation Officers, this court cannot ask a U.S.
Attorney to do more than stand by a plea agreement it has made and, in doing
so, this AUSA did not breach the agreement. Other case law illustrates similar
results—a plea agreement is breached when the Government agrees to one thing
at the plea but then actively advocates for something different at sentencing.
See, e.g., United States v. Munoz, 408 F.3d 222, 227 (5th Cir. 2005) (holding that
the Government implicitly promised not to argue for an abuse-of-trust
adjustment that was not a part of the plea agreement and breached the
agreement by arguing for that adjustment at sentencing); United States v.
Saling, 205 F.3d 764, 767 (5th Cir. 2000) (holding that the Government breached

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a plea agreement recommending concurrent sentences by arguing for consecutive
sentences at sentencing).
      Finally, we note that our decision here comports with a prior unpublished
decision of this court, United States v. Traugott, 364 F. App’x 925 (5th Cir. 2010),
which held that the Government did not breach a plea agreement under similar
factual circumstances. In Traugott, the plea agreement included a stipulation
for a base offense level of 32 based on a plea for conspiracy to possess with intent
to distribute methamphetamine. However, in light of information in the PSR
that Traugott had prior convictions for a crime of violence and a drug trafficking
crime, the district court applied the career offender enhancement which
increased the offense level to 37. This court noted that the plea stipulation
“merely confirms the appropriate guidelines section applicable to his offense. It
does not preclude application of the career offender enhancement.” Id. Also,
Traugott had acknowledged at his plea colloquy that the district court was not
bound by the plea agreement and that his guideline range could be increased
based on guideline adjustments. Accordingly, the court held: “The government
did not breach the plea agreement by supporting the application of the career
offender provision,” and the district court did not err by applying the career
offender provision. Id.
                               IV. CONCLUSION
      For the foregoing reasons, Loza-Gracia’s sentence is AFFIRMED.




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