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

                                    No. 15-41641
                                                                                Fifth Circuit

                                                                              FILED
                                                                          April 25, 2017

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
             Plaintiff - Appellee

v.

RODERRETE DEWRAYNE MCCLURE,

             Defendant - Appellant




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


Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Roderrete Dewrayne McClure appeals the denial of his motion to dismiss
his indictment for narcotics trafficking, contending that prosecution of the
charges is barred by the terms of a 2012 plea agreement (the “2012 Plea
Agreement” or “Plea Agreement”) he entered into with the Government.
Pursuant to that agreement, McClure pled guilty to a violation of 18 U.S.C.
§ 922(g)(1), Felon in Possession of a Firearm. Information leading to that
charge was obtained during the course of the Government’s investigation of
McClure for public corruption and narcotics trafficking, which eventually gave
rise to the charges in the challenged indictment. We agree with the district
court that the instant charges are based on a separate and distinct course of
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conduct from the § 922(g)(1) offense to which McClure pleaded guilty.
Therefore, we AFFIRM.
                                I.      BACKGROUND
   A. Federal Investigation of Public Corruption and Drug Trafficking
      Conspiracy
      Between August 2009 and August 2010, McClure conspired with then
City Marshal of Tenaha, Texas, Fred Walker, to steal drugs on several
occasions from the evidence room of the Tenaha Marshal’s Office in order to
distribute them for sale. Dallas area resident Tracy Fortman later joined the
conspiracy. 1     Concerned about detection, McClure and Walker staged a
burglary of the evidence room in August 2010, planting evidence to make it
appear that members of a Mexican drug cartel had committed the burglary.
They stole drugs and guns, but dumped the guns in a creek outside of Tenaha.
Walker then notified an investigator with the Shelby County District
Attorney’s Office about the burglary. Further investigation led authorities to
suspect the burglary was staged.
      The FBI became involved after Walker in November 2010 forwarded to
FBI Special Agent Stewart Fillmore two identical extortion letters he and
McClure received at their respective residences. The letters were signed by
“Jack Frost,” who purported to be a DEA agent and threatened to expose the
theft and drug trafficking conspiracy unless Walker and McClure each gave
him $70,000. Agent Fillmore began investigating and by the summer of 2011
concluded that the letters had been written by Tracy Fortman.




      1   Neither Walker nor Fortman were indicted for the conspiracy.
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      After being confronted by authorities, Fortman admitted that he wrote
the letters because he needed the money due to his lack of success in moving
the drugs McClure and Walker provided him. Fortman provided details about
the conspiracy and the staged burglary. In addition, he showed Agent Fillmore
a photograph of a “well-stocked” gun cabinet in McClure’s home. By that time,
Agent Fillmore knew that McClure was a convicted felon.
      Shortly before interviewing Fortman, Agent Fillmore also interviewed
McClure about the alleged burglary of the Tenaha City Marshal’s office.
During that interview, McClure, who ran a computer business in Tenaha,
volunteered that, at Walker’s request, he had installed recording equipment at
the Marshal’s Office and City Hall and that he kept copies of secret recordings
on computers and hard drives in his home.
      Based on this information, agents obtained a search warrant for
McClure’s home on August 15, 2011. During execution of the warrant, agents
seized several computers and other electronic devices, as well as 13 firearms,
a body armor vest, and more than 1,000 rounds of ammunition.                Upon
questioning, McClure admitted his involvement with the narcotics trafficking
scheme, including the staged burglary to cover up the theft of the drugs.
   B. The § 922(g) Case (“the Lufkin Gun Case”)
      Two days later, on August 17, 2011, the United States Attorney’s Office
for the Eastern District of Texas, Lufkin Division, obtained an indictment
against McClure charging a violation of 18 U.S.C. § 922(g)(1), Felon in
Possession of a Firearm.      While the case was proceeding to trial, the
Government filed a notice of intent to offer Rule 404(b) evidence of the guns
stolen from the Tenaha Marshal’s Office, which McClure had admitted he and
Walker disposed of in a creek outside Tenaha. At a hearing, the district court
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excluded the evidence on Rule 403 grounds, finding that it concerned “this
other crime which is still under investigation” and was merely “peripheral” to
the § 922(g) charge; thus the evidence was substantially more prejudicial than
probative.
      Shortly thereafter, on February 14, 2012, McClure pleaded guilty to a
single count of being a felon in possession of a firearm. In pertinent part, the
2012 Plea Agreement provided:
      8. GOVERNMENT’S AGREEMENT: The United States Attorney
      for the Eastern District of Texas agrees not to prosecute the
      defendant for any additional non-tax-related charges based upon
      the conduct underlying and related to the defendant’s plea of
      guilty.
In conjunction with the agreement, McClure signed a factual resume
describing his possession of 13 guns found in his home and his prior felony
conviction.
      At the plea hearing, the court informed McClure that the agreement “is
taking care of federal charges against you here in the Eastern District of
Texas.” The court asked McClure whether there was “any other agreement or
promise from the [G]overnment that’s not set out in this plea agreement.”
McClure responded, “No, sir.”
      McClure was sentenced to imprisonment for 36 months and one day,
which was a downward departure from the guidelines range.
   C. The Narcotics Trafficking Conspiracy Case (“the Tenaha Case”)
      Following resolution of the Lufkin Gun Case, the Government continued
its investigation of the public corruption and narcotics trafficking conspiracy.
In September 2012, the investigation was transferred from the Lufkin to the
Tyler Division. On August 28, 2013, a federal grand jury for the Eastern

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District of Texas, Tyler Division, returned a five-count indictment against
McClure, charging two counts of drug conspiracy; possession with intent to
distribute and distribution of marijuana, cocaine, and prescription drugs; use,
carrying, and possession of a firearm during and in furtherance of a drug
trafficking crime; and possession of a firearm by a convicted felon.        The
firearms at issue in the last two counts of the indictment were not the same
weapons that formed the basis of McClure’s 2012 Plea Agreement in the Lufkin
Gun Case.
      McClure moved to dismiss the indictment on the grounds that the
Government’s prosecution of the new charges breached the 2012 Plea
Agreement.    The district court conducted an extensive motion hearing, at
which it heard testimony from numerous witnesses, including the prosecutor
and defense counsel in the Lufkin Gun Case and federal agents involved in the
narcotics trafficking investigation.
      At the hearing, defense counsel in the Lufkin Gun Case, Lori Mack,
testified that it was her understanding during plea negotiations that the plea
agreement would preclude any charges related to the Tenaha narcotics
investigation and that she advised McClure accordingly. When pressed for
details regarding communications with the Government that led to her belief,
however, she could not recall any specific conversation in which the Assistant
U.S. Attorney (“AUSA”), Lisa Flournoy, indicated that the plea agreement
would dispose of drug trafficking allegations still under investigation.
      Flournoy, by contrast, testified that she never suggested to Mack or
anyone else that McClure’s pleading guilty in the Lufkin Gun Case would
dispose of possible future charges related to the ongoing narcotics
investigation. Mack also never asked whether the plea agreement would cover
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such charges.    Flournoy further testified that Mack never received any
discovery pertaining to the narcotics investigation, other than evidence related
to the guns stolen from the Marshal’s Office, which were the subject of the
Government’s Rule 404(b) notice (and the basis of the gun charges in the
instant indictment).
      After the district court denied McClure’s motion to dismiss, the
Government filed a superseding one-count information charging McClure with
conspiracy to possess with intent to distribute over 50 kilograms of marijuana
and aiding and abetting. On March 6, 2015, McClure pleaded guilty to the
superseding information and was sentenced to 56 months of imprisonment,
followed by three years of supervised release. The plea agreement reserved
McClure’s right to appeal the denial of his motion to dismiss. He timely noticed
an appeal.
                             II.   DISCUSSION
   A. 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. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008) (quoting United States v.
Lewis, 476 F.3d 369, 387 (5th Cir. 2007)) (internal quotations omitted).
   B. No Breach of 2012 Plea Agreement
      “If a defendant pleads guilty as part of a plea agreement, the
Government must strictly adhere to the terms and conditions of its promises
in the agreement.” Elashyi, 554 F.3d at 501 (quoting United States v. Munoz,
408 F.3d 222, 226 (5th Cir. 2005)) (internal quotations omitted). “Furthermore,
when a guilty plea ‘rests in any significant degree on a promise or agreement
of the prosecutor, so that it can be said to be part of the inducement or
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consideration, such promise must be fulfilled.’” United States v. Valencia, 985
F.2d 758, 761 (5th Cir. 1993) (quoting Santobello v. New York, 404 U.S. 257,
262 (1971)). The defendant bears the burden of proving by a preponderance of
the evidence that the Government breached a plea agreement. Lewis, 476 F.3d
at 387.     To assess a claim of breach, “this court considers whether the
government’s conduct is consistent with the defendant’s reasonable
understanding of the agreement.”               Elashyi, 554 F.3d at 501 (internal
quotations and citation omitted). “We apply general principles of contract law
in order to interpret the terms of the plea agreement.” Lewis, 476 F.3d at 387.
“Thus, when a [plea] contract is unambiguous, this court generally will not look
beyond the four corners of the document.” United States v. Long, 722 F.3d 257,
262 (5th Cir. 2013).
       In the 2012 Plea Agreement, the Government agreed not to bring any
additional charges “based upon the conduct underlying and related to the
defendant’s plea of guilty.” The district court determined that this language
was unambiguous and could be interpreted according to its plain meaning. It
then resorted to Webster’s dictionary to construe the meaning of the two
operative terms, defining underlying in relevant part as “to be at the basis of”
and related to as “to bring into logical or natural association.” 2 The court also
observed that the two terms were joined together by a conjunction, although it




       2 See Webster’s II New Riverside University Dictionary 992, 1257 (1994). In United
States v. Bevill, 611 F. App’x 180 (5th Cir. 2015) (unpublished), we also turned to the
dictionary, there the Oxford English Dictionary (“OED”), to define these terms in similar
fashion. See id. at 183 n.5 (noting OED defines underlying in part as “[l]ying under or
beneath” and related to in part as “connected or having relation to something else”); see also
OED Online, Oxford University Press 2017, http://www.oed.com/view/Entry/211817 and
http://www.oed.com/view/Entry/161808#eid25955656 (last visited March 30, 2017).
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noted that its conclusion that McClure did not meet his burden of proving a
breach of the plea agreement would be the same if the terms were joined
disjunctively.
      Accordingly, the district court concluded that, reasonably construed,
      [T]he Government agreed not to bring a very specific kind of charge
      against the Defendant . . . one that is based not only on conduct
      that forms the basis of (underlying) the Defendant’s plea of guilty
      to possessing firearms found in his home, but also is logically or
      naturally associated with (related to) Defendant’s plea of guilty to
      possessing the firearms found in his home.
      Applying this meaning to the facts, the district court found that the two
cases involved separate and distinct courses of conduct. In the Lufkin Gun
Case, the factual basis of McClure’s plea of guilty was his possession of the 13
guns found in his home while he had a prior felony conviction. On the other
hand, the Tenaha Case indictment charged that McClure engaged in a
conspiracy to distribute drugs stolen from the Tenaha Marshal’s Office and
that McClure possessed firearms stolen from the Marshal’s Office while
trafficking drugs and while being a convicted felon. Further, all the alleged
conduct in the Tenaha Case occurred from August 2009 to the end of 2010,
months before the Government discovered the relevant conduct in the Lufkin
Gun Case, on August 15, 2011. Therefore, the course of conduct underlying
the charges in the Tenaha Case occurred at a different place and time than the
conduct in the Lufkin Gun Case; it implicated different statutory violations;
the firearms involved were unrelated to those found in McClure’s home; and
Walker, an unindicted co-conspirator in the drug trafficking conspiracy, “is not,
nor could he be, a co-conspirator in the Lufkin Gun Case.” Thus, the district
court concluded that the charges in the Tenaha Case indictment were neither
“underlying” nor “related to” the conduct to which McClure pleaded guilty
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through the 2012 Plea Agreement. Consequently, they were not barred by that
Agreement.
      We agree with the district court’s reasoning and its conclusion. In other
cases where the Government has brought additional charges against a
defendant based on conduct that was both temporally and geographically
distinct and involved different statutory violations and co-conspirators, we
have found no breach of the plea agreement. See United States v. Wittie, 25
F.3d 250, 263 (5th Cir. 1994) (no breach of plea agreement where “two distinct
conspiracies were involved: they were separated by time; they involved
different co-conspirators; they involved different statutory offenses; they
included different overt acts in each offense charged; and they occurred in
different geographical locations”), aff’d on other grounds sub nom. Witte v.
United States, 515 U.S. 389 (1995); Lewis, 476 F.3d at 388 (no breach of plea
agreement in serial prosecution for drug trafficking where new indictment
pertained to larger drug trafficking conspiracy involving different co-
conspirators and acts committed over much broader time span).
      Two recent cases examining plea agreements with similar language
further support this conclusion. In United States v. Ramirez, 555 F. App’x 315
(5th Cir. 2014) (unpublished), the Government agreed not to prosecute a
defendant for other charges “based on conduct underlying” his guilty plea to
conspiracy to distribute methamphetamine. Id. at 318. When the defendant
was later prosecuted for a larger drug and money laundering conspiracy
involving cocaine, he claimed the Government breached the agreement. Id.
We determined there was no breach because the two conspiracies were distinct.
Id. “Given the different time frames, co-defendants, controlled substances, and
general locations of the two offenses, it would not be reasonable for [the
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defendant] to believe that his plea agreement in the methamphetamine case
barred his prosecution for the instant cocaine offense.” Id. Then in United
States v. Bevill, 611 F. App’x 180 (5th Cir. 2015) (unpublished), we interpreted
language in a plea agreement identical to the pertinent language here. The
defendant had pleaded guilty to securities fraud in exchange            for the
Government’s promise not to bring any additional charges against him “based
upon the conduct underlying and related to [his] plea of guilty.” Id. at 180–81
(internal quotation marks omitted). When the Government subsequently
charged him with wire fraud, securities fraud, and money laundering for
conduct occurring while he was on supervised release from his earlier
conviction, the defendant argued that the Government had breached the plea
agreement because the two cases involved the same type of fraudulent scheme
and much of the conduct underlying the new indictment had taken place before
his guilty plea in the previous case. Id. at 182. We rejected this argument,
determining that the conduct at issue in the two cases occurred at different
times and involved different fraudulent entities and victims. Id. at 182–83.
Thus, it was not reasonable for the defendant to interpret the Government’s
earlier agreement as prohibiting a prosecution based on this separate and
unrelated conduct. Id. at 183.
      McClure does not deny that the two prosecutions involve different
courses of conduct. Moreover, he concedes that the 2012 Plea Agreement is
unambiguous on its face and, consequently, we generally would not look
beyond the four corners of the document.         See Long, 722 F.3d at 262.
Nonetheless, he urges us to “take a more expansive view of the record” because,
in his view, the circumstances surrounding the Plea Agreement render its
scope ambiguous, such that he reasonably believed pleading guilty to the §
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922(g)(1) charge in the Lufkin Gun Case would foreclose future prosecution for
his involvement in the Tenaha drug trafficking conspiracy.                      We are not
persuaded.
       First, McClure argues that because the two cases arose from the same
Government investigation, they are “inextricably intertwined.” 3                          This
argument misses the point. The focus of the Government’s promise not to bring
any additional charges is on the conduct “underlying and related to” McClure’s
guilty plea, not on the Government’s investigation of that conduct. Because
the charges in the Tenaha Case were based on a separate and distinct course
of conduct from McClure’s guilty plea in the Lufkin Gun Case, those charges
were not barred by the terms of the Plea Agreement.
       Second, McClure contends that his case is akin to United States v.
Elashyi, where we determined that the Government had breached a
defendant’s plea agreement resolving charges of export violations arising from
his computer-export business by subsequently prosecuting him for similar
charges arising from his involvement in a separate export business. 554 F.3d
at 501–02. But the language of the plea agreement in Elashyi was broader
than the Plea Agreement here. In Elashyi, the Government agreed not to
“seek, prefer or prosecute any further criminal charges against [the defendant]



       3  McClure points out that both cases were investigated under the same agency case
number; investigators recommended that the cases be prosecuted together; the Government
at one point expressed concern that the relatedness of the two cases would cause a possible
conflict for the defense attorneys involved; the majority of the evidence at issue in both cases
came about as a result of the same search warrant; the Government sought to introduce
evidence relating to the offenses charged in the Tenaha Case at his trial in the Lufkin Gun
Case; and the charges in the Tenaha Case indictment parrots language in the 2011 search
warrant that led to the discovery of the firearms in McClure’s home.

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arising out of the facts and circumstances known by the government at this
time surrounding [the defendant’s] involvement in the crimes addressed in the
. . . indictment.” Id. at 501. As we noted there, the phrase “arising out of” has
typically been given a “very broad interpretation.”        Id.   Furthermore, in
Elashyi, the later prosecution arose out of facts that were not only known to
the Government at the time of the plea offer, but also were an integral part of
the background to the preceding indictment. Id. at 501–02. Indeed, those facts
were alleged and incorporated by reference in connection with every count in
the preceding indictment. Id. By contrast, the indictment in the Lufkin Gun
Case never mentions the drug trafficking conspiracy. McClure seizes on the
fact that here, as in Elashyi, the Government knew of the facts and
circumstances that formed the basis of the Tenaha Case indictment at the time
of the plea offer. But in Elashyi, the Government’s knowledge was significant
because the language in the plea agreement made it so. It expressly precluded
“further criminal charges . . . arising out of the facts and circumstances known
by the government at this time surrounding [the defendant’s] involvement in
the crimes addressed in the . . . indictment.” Id. at 501 (emphasis added).
McClure’s plea agreement contains no such language and the Government’s
decision to wait to bring the instant charges until it completed its investigation
is not otherwise a violation of the 2012 Plea Agreement.
      Third, McClure asserts that his subjective belief that he would avoid
prosecution for his involvement in the drug trafficking conspiracy is reasonable
because his attorney, Lori Mack, believed the same and advised him
accordingly.   The district court discredited Mack’s testimony because she
lacked a concrete basis for her subjective impression that the plea would
absolve McClure from any liability related to the ongoing Tenaha
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investigation. Mack could not recall any communication from AUSA Flournoy
that led to her belief. Flournoy, on the other hand, testified that she never
made any such promise. Nor did Mack ever ask whether the plea would
conclude the Tenaha investigation as it pertained to McClure.                       In fact,
everyone, including the Lufkin court, seemed to be operating under the
understanding that the investigation would continue after the plea. 4 Given
the gravity of the allegations under investigation, it would be unreasonable to
assume that the Government would decline to pursue future charges against
McClure unless it expressly stated such an intention.                       Moreover, the
Government sought no term of sentence beyond the guidelines range for the
felon-in-possession offense and McClure, in fact, received a sentence below the
guidelines range. These circumstances make it even less plausible that the
2012 Plea Agreement was meant to cover the narcotics conspiracy, charges of
which were not yet pending at the time of the plea offer.
       A defense counsel’s subjective belief that a defendant’s plea will preclude
future prosecution related to an ongoing investigation, even if the defendant
relied upon it, does not, without more, immunize him from prosecution. See
United States v. Williams, 809 F.2d 1072, 1079–80 (5th Cir. 1987) (although
defense counsel believed clients’ plea agreement with Western District of Texas
would preclude indictment related to ongoing investigation in Southern



       4  For example, although McClure makes much of the Government’s Rule 404((b) notice
of its intent to introduce evidence of the guns stolen from the Tenaha Marshal’s Office at his
trial in the Lufkin Gun Case, the Lufkin court excluded the evidence of “this other crime
which is still under investigation.” Other than that evidence, Flournoy testified that she
never provided Mack with any discovery pertaining to the drug trafficking conspiracy, which
made it difficult for the district court “to ascertain how [Mack] determined that two courses
of conduct are related enough to be covered by the plea agreement in the Lufkin Gun Case.”

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District of Texas and advised clients accordingly, government’s evidence
supported trial court’s finding of no promise not to prosecute in Southern
District), reh’g granted to different defendant, 828 F.2d 1 (5th Cir. 1987).
      Finally, McClure contends that the Government’s conduct in the Lufkin
Gun Case implied that it would not prosecute him for charges related to the
drug trafficking conspiracy. The district court did not find any support in the
record for any promise other than those contained in the 2012 Plea Agreement.
McClure nonetheless suggests that the Government should have informed him
at the time of the plea offer that it intended to bring charges related to the
Tenaha investigation and that its silence amounted to trickery intended to
induce him to plead guilty.
      It is true that “when a guilty plea ‘rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.’” Valencia, 985
F.2d at 761 (quoting Santobello, 404 U.S. at 262). But the defendant bears the
burden of proving that the Government made such a promise, and omissions,
without more, rarely suffice. See, e.g., United States v. Pihakis, 545 F.2d 973,
975 (5th Cir. 1977) (prosecutor’s failure to inform defendant of potential
prosecution in another district did not constitute implied promise not to
prosecute those charges); Feliciano v. United States, 914 F. Supp. 776, 779
(D.P.R. 1996) (Government’s knowledge of offenses charged in second
indictment when it filed first indictment and failure to inform defendant of
future prosecution did not constitute implied promise absent evidence of any
actual promise not to prosecute), aff’d sub nom. Rivera-Feliciano v. United
States, 107 F.3d 1 (1st Cir. 1997).


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      During the plea hearing in the Lufkin Gun Case, the court asked
McClure whether there was any other agreement or promise from the
Government that was not set out in the Plea Agreement itself.          McClure
responded that there was not. We have previously held a defendant to his
statements at the plea hearing where he indicated there was no promise
outside of the written agreement. See United States v. Kirk, 70 F.3d 791, 794
(5th Cir. 1995) (affirming district court’s finding that Government made no
implied promise not to prosecute based in part on defendant’s statement at
plea hearing that no one had made any promise other than plea agreement
that induced him to plead guilty), reh’g granted on other grounds and aff’d by
an equally divided court, 105 F.3d 997 (5th Cir. 1997). We similarly see no
reason here not to hold McClure at his word.
                           III.   CONCLUSION
     For the foregoing reasons, we AFFIRM the judgment of the district court.




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