     Case: 17-20078         Document: 00514456703         Page: 1     Date Filed: 05/03/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                         No. 17-20078
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                               May 3, 2018

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

v.

JOSE HERRERA-ALVARADO, also known as Froilan Herrera-Alvarado, also
known as Montera-Alvarado, also known as Eddie,

                 Defendant - Appellant


                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 4:15-CR-44-2


Before KING, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jose Herrera-Alvarado (“Herrera”) 1 appeals his guilty-plea conviction for
conspiring to possess with intent to distribute heroin. Herrera waived his right
to appeal as part of the plea agreement. Nevertheless, he contends for the first
time on appeal that the Government breached two implied promises in the plea
agreement and, therefore, that he should be permitted either to withdraw the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   Herrera-Alvarado refers to himself as “Herrera” in his brief.
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plea or to specifically enforce it during a resentencing before a different judge. 2
Because we perceive no plain error, we DISMISS the appeal based on the plea
agreement’s appellate waiver provision.
                                    I. Background
       A multi-count superseding indictment charged Herrera and several
others with crimes arising from a long-running conspiracy to possess with
intent to distribute controlled substances.              Pursuant to a written plea
agreement, Herrera pleaded guilty to Count One, which charged a conspiracy
to possess with intent to distribute heroin.
       Herrera’s plea agreement waived his right to appeal, preserving only the
right to assert ineffectiveness of counsel. It further provided, in relevant part,
that “[a]t the time of sentencing, the United States agrees to recommend that
the defendant receive a two (2) level downward adjustment pursuant to [U.S.
Sentencing Guidelines Manual] Section 3E1.1(a) should the defendant accept
responsibility as contemplated by the Sentencing Guidelines.”                   If Herrera
qualified for the acceptance of responsibility adjustment, the Government
offered to recommend an additional one level reduction “based on the
timeliness of the plea which allowed the government to efficiently allocate its
resources,” so long as the offense level was greater than 16. The agreement
also stated that “the United States reserves the right . . . to set forth or dispute
sentencing factors or facts material to sentencing.”
       The presentence report (“PSR”) calculated a total offense level of 46
under the 2015 U.S. Sentencing Guidelines Manual (“U.S.S.G.”), but it was
reduced to a maximum level of 43 under the Sentencing Guidelines. The
offense level included an increase of two levels for obstructing justice. In
support of the obstruction of justice recommendation, the PSR described a post-


       2Herrera does not challenge the validity of the waiver as such, only arguing that it is
void because of a subsequent breach of the plea agreement.
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arrest proffer interview in which a coconspirator and potential witness, Aaron
Cervantes, stated that immediately after the arrest Herrera told him not to
cooperate with law enforcement, warned him about being labeled a “rat” if he
did talk to law enforcement, and promised to pay lost income to Cervantes
because of his arrest.
      The patrol car in which the obstructive conduct occurred had a recording
system that recorded the conversation, and the Government provided the audio
recording to the defense.      Prior to entering into the plea agreement, the
Government notified Herrera’s defense counsel of this evidence and that the
United States Probation Office might use it to argue for an obstruction of
justice finding, which “might also knock out acceptance of responsibility.” The
Government’s email to defense counsel also said, “I’ve left it out of the factual
basis so we can make our respective arguments at sentencing.” Later that
month, Herrera signed the plea agreement.
      As a result of the increase for obstruction of justice, the PSR declined to
recommend any credit for acceptance of responsibility because note 4 in the
commentary to U.S.S.G. § 3E1.1 states that obstruction of justice “ordinarily
indicates that the defendant has not accepted responsibility for his criminal
conduct,” except in “extraordinary cases,” and the PSR found “nothing
extraordinary in this case.” Herrera objected to the PSR, in pertinent part, by
arguing that his offense level should not have been increased for obstruction of
justice and that the PSR should not have recommended withholding credit for
acceptance of responsibility on account of the obstruction increase.         The
Government filed a response in support of the PSR’s recommendation, arguing
that Herrera attempted to obstruct justice and was thus not entitled to credit
for acceptance of responsibility. The PSR remained unchanged with respect to
the obstruction justice and acceptance of responsibility recommendations.
      At sentencing, Herrera again contested the obstruction increase and

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denial of credit for acceptance of responsibility, and the Government again
argued in support of both determinations. The Probation Officer added that,
because Herrera had received the obstruction increase, even with a three-level
acceptance of responsibility decrease his offense level would still be the
maximum of 43.
       The district court adopted the PSR and determined that Herrera’s
offense level was 43 and his criminal history category was II, resulting in an
advisory Guidelines range of life. The court sentenced Herrera to life in prison,
and in its explanation stated, among other things, that a sentence within the
Guidelines range was appropriate because Herrera had obstructed justice.
Following the announcement of the sentence, the Government asked the
following question: “Would the Court have made the same finding as to the
sentence of life imprisonment notwithstanding some of the objections on the
enhancements we’ve been going over?” The court responded, “Yes, I would.”
Herrera filed a timely notice of appeal.
                              II. Standard of Review
      We review for plain error because Herrera did not assert his claim of a
breached plea agreement in the district court. See United States v. Cluff, 857
F.3d 292, 297 (5th Cir. 2017) (“A claim that the government breached the plea
agreement is reviewed de novo unless the defendant failed to preserve his
objection, in which case the claim is reviewed for plain error.”). “[T]he burden
of establishing entitlement to relief for plain error is on the defendant claiming
it.” United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). To establish
plain error, Herrera “must show (1) an error (2) that was clear or obvious
(3) that affected his substantial rights.” United States v. Avalos-Martinez, 700
F.3d 148, 153 (5th Cir. 2012) (per curiam). If Herrera establishes plain error,
“we have the discretion to correct the error if it ‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.’” Id. (quoting Puckett v.

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United States, 556 U.S. 129, 135 (2009)).
                                    III. Discussion
       Herrera argues that the appeal waiver is void and that we should vacate
and remand his sentence because the Government breached two implied
promises in the plea agreement: (1) that the Government would not seek an
obstruction of justice enhancement based on pre-plea conduct; and (2) that,
even if Herrera received a two-level obstruction of justice enhancement for pre-
plea conduct, “the Government would not seek to deny acceptance of
responsibility . . . based on that pre-plea conduct.” 3 We hold that (1) there was
no implied promise that the Government would not seek an obstruction of
justice enhancement based on pre-plea conduct, and (2) any error related to
the alleged breach for seeking to deny credit for acceptance of responsibility
did not affect Herrera’s substantial rights because it would not have changed
the Guidelines range of life imprisonment. Accordingly, we dismiss the appeal
based on the plea agreement’s waiver provision.
       As an initial matter, the waiver provision does not preclude Herrera’s
ability to argue on appeal that the Government breached the plea agreement.
“An ‘alleged breach of a plea agreement may be raised despite a waiver
provision.’” United States v. Purser, 747 F.3d 284, 289 (5th Cir. 2014) (quoting
United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011)). Moreover, “when
the Government breaches a plea agreement, the defendant is ‘necessarily
released from an appeal waiver provision contained therein.’” Id. at n.11
(quoting United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002)).




       3 Herrera also articulates the second implied promise as requiring affirmative action
by the Government: “[I]f Mr. Herrera did receive a two-level enhancement for obstruction of
justice on the basis of the statements [he] made to Cervantes, the Government would
nevertheless recommend the three-level reduction for acceptance of responsibility since it
was aware of that conduct when it entered into the plea agreement with Mr. Herrera.”
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      When interpreting plea agreements, we apply general principles of
contract law. Cluff, 857 F.3d at 298. “To determine whether the terms of the
plea agreement have been violated, [we] must consider ‘whether the
government’s conduct is consistent with the defendant’s reasonable
understanding of the agreement.’” Id. (quoting Pizzolato, 655 F.3d at 409).
Both express and implied terms should be considered. Id. “The plea agreement
is construed strictly against the Government,” but “[t]he defendant has the
burden of demonstrating the underlying facts that establish the breach by a
preponderance of the evidence.” Purser, 747 F.3d at 290.
      Where, as here, the plea agreement reserves the Government’s right “to
set forth or dispute sentencing factors or facts material to sentencing,” the
Government is generally entitled to seek an obstruction of justice enhancement
so long as it has not already stipulated to the total offense level and set forth
specific enhancements that would apply to the defendant’s sentence. See Cluff,
857 F.3d at 300 (distinguishing United States v. Munoz, 408 F.3d 222 (5th Cir.
2005)).   Note 4 in the commentary to U.S.S.G. § 3E1.1 states that an
obstruction of justice finding “ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct,” except in “extraordinary
cases.” Accordingly, we have noted that “[a]n obstruction of justice charge
almost always necessarily militates against an acceptance of responsibility
recommendation by the government and a sentence reduction by the district
court.” Id. at 298 (quoting United States v. Quintero, 618 F.3d 746, 751–52
(7th Cir. 2010)). We also held in Cluff that the Government is entitled to
abstain from recommending credit for acceptance of responsibility where, as
here, the plea agreement “conditions the Government’s obligation to
recommend acceptance credit on the defendant ‘accepting responsibility as
contemplated by the Sentencing Guidelines,’ and the defendant fails to do so”
by obstructing justice, and it is not an extraordinary case. See id. at 299–301.

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      Herrera acknowledges the holding in Cluff, but he argues that Cluff is
distinguishable because, there, the predicate conduct occurred after the plea
agreement. By contrast, here, the conduct supporting the finding that Herrera
obstructed justice occurred prior to the plea agreement, and the parties were
aware of the conduct when they entered into the plea agreement.
      The evidence shows that the Government notified Herrera a few weeks
prior to signing the plea agreement that the obstruction of justice evidence was
omitted from the factual basis so that the parties could make their respective
arguments at sentencing. Indeed, the plain language of the plea agreement
and the surrounding circumstances at sentencing confirm this understanding
of the plea agreement. There are no provisions in the plea agreement imposing
limitations on seeking an obstruction of justice enhancement, and the
provision reserving the Government’s right “to set forth or dispute sentencing
factors or facts material to sentencing” is broad enough to cover pre-plea
conduct relating to an obstruction of justice enhancement. See id. at 300
(concluding that “[t]his provision is broad enough to cover enhancements such
as the one at issue here regarding obstruction of justice” and “the Government
was entitled to . . . recommend enhancements not specifically mentioned in the
plea agreement”). Moreover, if, as Herrera asserts, he relied on this supposed
implicit promise at the time he agreed to the plea agreement’s terms, one would
have expected him to object at the sentencing hearing on this basis. Indeed,
he had ample notice that the Government would argue for obstruction of justice
at sentencing; it sent an email a few weeks prior to executing the plea
agreement indicating it would make this argument at sentencing and then
made the argument in response to Herrera’s objections to the PSR’s
recommendations.      Accordingly, similar to Cluff, “[b]ecause [Herrera’s]
agreement did not stipulate to a total offense level, the Government was


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entitled to . . . recommend enhancements not specifically mentioned in the plea
agreement,” including enhancements based on pre-plea conduct. See id.
      Absent any case law to support his position, Herrera appeals to reason.
He contends that without an implied promise to not rely on pre-plea conduct
in arguing for an obstruction of justice finding, the promise to recommend
credit for acceptance of responsibility “conferred no benefit since an obstruction
of justice finding would foreclose a reduction for acceptance of responsibility.”
This argument is based on two faulty assumptions. It assumes that the district
court will (1) always conclude that pre-plea conduct constitutes obstruction of
justice when the Government makes such arguments and (2) never award
credit for acceptance of responsibility after it makes an obstruction of justice
finding.   But the district court does not have to accept the Government’s
argument, and the Government is free to still seek credit for acceptance of
responsibility despite such a finding.       Indeed, Herrera ignores that in
“extraordinary cases” credit for acceptance of responsibility is still appropriate
despite an obstruction of justice finding. See U.S.S.G. § 3E1.1 cmt. n.4. His
own conduct at sentencing bears this out: Herrera argued against an
obstruction of justice finding and in favor of a determination that credit for
acceptance of responsibility should nevertheless be granted even if the
enhancement was applied.       Thus, because there remained a chance that
Herrera might receive credit for acceptance of responsibility despite the
Government’s right to seek an obstruction of justice enhancement based on
pre-plea conduct, he still received a benefit, even if that benefit was somewhat
limited by the risk associated with the pre-plea conduct.
      Because the Government did not breach the plea agreement by seeking
the obstruction of justice enhancement, any error related to seeking denial of
credit for acceptance of responsibility did not affect Herrera’s substantial
rights. Herrera’s offense level would, at best, be reduced from 46 to 43 if he

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received both credit for acceptance of responsibility and the obstruction of
justice enhancement. This is the same maximum offense level resulting in his
current Guidelines range and sentence. Accordingly, his substantial rights
would not be affected by any error related to the denial of credit for acceptance
of responsibility. See United States v. Garcia-Gonzalez, 714 F.3d 306, 317 (5th
Cir. 2013) (holding that the defendant “cannot show an error that affected his
substantial rights because he would have received the same Guidelines range
and sentence”).
      Even if there were plain error, we would not exercise our discretion to
correct the error. Declining to correct the error would not result in a
miscarriage of justice. See United States v. Escalante-Reyes, 689 F.3d 415, 425
(5th Cir. 2012) (en banc) (“[T]he discretion conferred by Rule 52(b) should be
employed in those circumstances in which a miscarriage of justice would
otherwise result.” (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
Even applying a “rebuttable presumption” that a plea agreement breach
satisfies the fourth prong, we find it rebutted here given the particular
circumstances described above, specifically, the Government’s explicit
reference to the audio recording and the issue of Herrera’s pre-plea conduct.
Cf. United States v. Kirkland, 851 F.3d 499, 505 (5th Cir. 2017) (recognizing a
rebuttable presumption that breaching a plea agreement satisfies the fourth
prong of the plain error test because it is a “particularly egregious error”).
      DISMISSED.




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