     Case: 11-20726   Document: 00512294185     Page: 1   Date Filed: 07/02/2013




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

                                                                  FILED
                                                                  July 2, 2013

                                 No. 11-20726                    Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,
v.

SCOTT MICHAEL LONG, also known as Hollywood, also known as Wood,

                                           Defendant-Appellant.



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


Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Scott Michael Long (“Long”) appeals his sentence,
which is based on the district court’s ruling that the Government did not breach
its plea agreement with him. On appeal, Long contends that the Government
agreed in an e-mail exchange that it would not seek a leader/organizer
sentencing enhancement pursuant to U.S.S.G. § 3B1.1(a), and that the
Government breached the plea agreement by supporting the enhancement
recommended in the presentence investigation report (“PSR”) and supporting it
at sentencing. Long thus maintains that his sentence should be vacated and the
matter remanded for resentencing before a different judge. Finding no error, we
AFFIRM the district court.
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                                             I.
A.     Indictment and Pre-Plea Agreement Negotiations
       On July 27, 2009, Long and 16 others were charged in a superseding
indictment with numerous drug offenses after an FBI investigation revealed that
a street gang in Freeport, Texas trafficked large amounts of cocaine powder and
base from 2007 to 2009. The investigation revealed that Long was responsible
for distributing large amounts of cocaine powder and base in Freeport and for
transporting and distributing cocaine in Fort Myers, Florida. Based on his
involvement, Long was charged with conspiracy to possess with intent to
distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A)(ii), and 841(b)(1)(A)(iii) (“Count One”); possession with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B)(ii) (“Count Fourteen”); and possession with intent to
distribute a substance containing a detectable amount of cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (“Count Fifteen”).
       Approximately one month prior to Long’s guilty plea, on December 23,
2010, Long’s counsel e-mailed the Assistant United States Attorney (“AUSA”)
assigned to Long’s case to confirm the Government’s position.1 The e-mail
stated,
              I want to make sure I understand your position on Scott
              Long’s case. I don’t want to give my client any incorrect
              information, especially since he is still having a lot of
              difficulty with his son’s death.

              My recollection of our conversation was that you would
              not agree to recommending that the career offender
              status was inappropriate in this case but that you
              would not argue in favor of it either. You would,
              however, agree to not seek any statutory enhancements

       1
        For ease of reference, the opinion will refer to the December 23, 2010 and January 6,
2011 e-mails as “the e-mail exchange.”

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              based upon his prior convictions. You would not argue
              for a manager/supervisor, etc., enhancement. You
              believe the drug weight would be based on
              approximately ½ kilo of cocaine per month from 2007 to
              2009. You would not seek an enhancement based on
              the gun found in Florida.

              With the career offender enhancement, he is still facing
              a very substantial sentence.

              Please let me know if I misunderstood anything we
              discussed. Also, please talk with the agents who
              debriefed him and let me know where he stands as far
              as a 5K1 motion. I am certain he is willing to answer
              any additional questions.

              If we don’t talk, I hope you and your family have a safe
              and happy holiday.

       After he did not receive a response, Long’s counsel re-sent the e-mail to the
AUSA on January 6, 2011. Later that day, the AUSA sent a reply e-mail, which
stated,
              Sorry I did not respond earlier. I blame the holidays.
              I believe you have stated everything correctly.
              Let me know when we can get this done.

B.     Guilty Plea Hearing
       On January 21, 2011, Long pled guilty to Count One pursuant to a written
plea agreement. Under the terms of the plea agreement, Long agreed to
cooperate with the Government and waived his right to appeal his sentence on
direct appeal or to collaterally attack his sentence under 28 U.S.C. § 2255.2 In


       2
         Long’s appeal waiver does not affect his ability to raise a breach argument because
an alleged breach of a plea agreement may be raised despite a waiver provision. See United
States v. Keresztury, 293 F.3d 750, 756-57 (5th Cir. 2002) (noting that where the Government
has breached a plea agreement, the defendant is necessarily released from any appeal waiver
provision contained therein).


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exchange for the plea, the Government agreed to dismiss Counts Fourteen and
Fifteen along with the original indictment and not to oppose Long’s anticipated
request for a two-level downward adjustment for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a). The Government further agreed that it would
move for an additional one-point reduction for acceptance of responsibility at
sentencing if Long’s offense level was 16 or greater. The plea agreement made
no mention of the Government’s stance as to a leader/organizer enhancement.
As a final matter, the plea agreement contained a merger clause, which
indicated that the plea agreement represented the complete agreement between
Long and the Government. The merger clause provided,
            This written plea agreement, including the attached
            addendum of defendant and his attorney, constitutes
            the complete plea agreement between the United
            States, defendant[,] and his counsel. No promises or
            representations have been made by the United States
            except as set forth in writing in this plea agreement.
            Defendant acknowledges that no threats have been
            made against him and that he is pleading guilty freely
            and voluntarily because he is guilty.
Long acknowledged the accuracy of the plea agreement after the AUSA
summarized the contents before the district court.
      Before accepting Long’s plea, the district court inquired into the
circumstances surrounding Long’s plea. Specifically, the district court asked
Long: “[A]re there any other or different promises or assurances that were made
to you in an effort to persuade you to plead guilty that did not get written down
in the plea agreement” or whether there was any “secret agreement out there
someplace?”    Long responded, “No, ma’m.” The district court subsequently
accepted Long’s plea and adjudged him guilty of Count One.
C.    PSR and Objections




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      On May 24, 2011, a probation officer prepared a PSR. Due to the nature
of Long’s offense, the PSR calculated a base offense level of 38 pursuant to
U.S.S.G. § 2D1.1(c)(1), a two-level upward adjustment pursuant to U.S.S.G. §
2D1.1(b)(1) because three firearms were located at a rental house where cocaine
was stored and cooked into crack; and a four-level upward adjustment pursuant
to U.S.S.G. § 3B1.1(a) because Long was deemed a leader/organizer of a criminal
activity that involved five or more participants. The PSR also recommended a
three-level reduction for Long’s acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1(a) and (b). In sum, Long’s total offense level was calculated as 41 with
a total criminal history category of IV. The Sentencing Guidelines recommended
an imprisonment term range of 360 months to life.
      On July 28, 2011, Long’s counsel filed objections to the PSR claiming, inter
alia, that there was no evidence that Long was a leader in the drug trafficking
organization and that the e-mail exchange prohibited the Government from
seeking a leader/organizer enhancement. In an e-mail to the AUSA dated July
28, 2011, Long’s counsel stated,
            In an e-mail exchange we had between December 23,
            2010 and January 6, 2011, you agreed not to seek
            enhancements for the guns or the organizer/manager
            role. (Let me know if you’d like me to forward the
            messages.)

On August 8, 2011, the AUSA responded,
            Can you send me the e[-]mail where I agreed to not
            seek the enhancement for Organizer/manager. I can’t
            remember that e[-]mail. I’m not saying I never agreed
            to that, I just don’t remember discussing role. I
            remember the rest.

            He’s earned a 5K so I will file it as the sentencing gets
            closer.




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      Long’s counsel subsequently forwarded the e-mail but received no follow-
up correspondence from the AUSA. On September 20, 2011, the AUSA filed a
“Response Under Local Rule 32.6” stating that it took “no issue with the factual
content of the [PSR],” that it believed the PSR to be “accurate,” and that it had
no objection “to the Guideline computation reached in the [PSR].”
D.    Long’s Motion to Enforce the Agreement and Sentencing Hearing
      On October 5, 2011, two days prior to sentencing, Long’s counsel filed a
sealed motion seeking to enforce the agreement, citing the e-mail exchange as
evidence that the Government agreed not to seek a leader/organizer
enhancement. At the sentencing hearing, the AUSA responded that the plea
agreement represented the complete terms governing the plea and that the
Government abided by its terms. Furthermore, the AUSA noted that the
Government did not promise to not seek the leader/organizer enhancement and
explained, “[t]here’s no way that I would have ever agreed” because “[Long] was
always the target of our investigation.”
      The district court subsequently asked Long’s counsel, “[I]s it correct that
the plea agreement itself does not specify that the government will not argue for
a four level [leader/organizer enhancement]?” In response, Long’s counsel
acknowledged that the plea agreement did not preclude the Government from
arguing for a leader/organizer enhancement, but noted that the “[t]he actual
wording in the plea agreement does not govern [the leader/organizer
enhancement] issue.”
      The district court denied Long’s motion on the basis that the e-mail
exchange did not represent an extra promise precluding the Government from
seeking a leader/organizer enhancement. The district court further concluded
that even if there was such an agreement, the Government did not breach the
agreement by maintaining that the PSR was factually accurate. Consequently,
the district court adopted the PSR’s recommended calculation, granted the

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Government’s § 5K1.1 motion for a downward departure, and sentenced Long to
235 months of imprisonment, to be followed by a five-year term of supervised
release. Long timely appealed.
                                      II.
      We review a claim of breach of a plea agreement de novo, accepting the
district court’s factual findings unless clearly erroneous. United States v.
Loza-Gracia, 670 F.3d 639, 642 (5th Cir. 2012) (citation omitted).
                                      III.
                                      A.
      Long concedes that the terms of the plea agreement did not preclude the
Government from seeking a leader/organizer enhancement.           Long asserts,
however, that the e-mail exchange is part of the plea agreement because it
reasonably induced him to plead guilty. See Santobello v. New York, 404 U.S.
257, 262 (1971). Long contends that by seeking the enhancement, the
Government breached the plea agreement and cites United States v. Melton, 930
F.2d 1096 (5th Cir. 1991), and United States v. Garcia, 956 F.2d 41 (4th Cir.
1992), as supporting authority. We conclude that Long’s argument is unavailing,
and we hold that the Government did not breach the plea agreement.
                                      B.
      This court applies general principles of contract law in interpreting the
terms of a plea agreement. United States v. Elashyi, 554 F.3d 480, 501 (5th Cir.
2008) (citation omitted). In interpreting a contract, this court looks “to the
language of the contract, unless ambiguous, to determine the intention of the
parties.” In re Conte, 206 F.3d 536, 538 (5th Cir. 2000). Although circumstances
surrounding the agreement’s negotiations might indicate the intent of the
parties, “parol evidence is inadmissible to prove the meaning of an unambiguous
plea agreement.” United States v. Ballis, 28 F.3d 1399, 1410 (5th Cir. 1994)
(citation omitted). Thus, when a contract is unambiguous, this court generally

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                                       No. 11-20726

will not look beyond the four corners of the document. See Elashyi, 554 F.3d at
502 (citation omitted). “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) (citation omitted). “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) (citations omitted).
                                              C.
       In Melton, this court considered extrinsic evidence notwithstanding the
plea agreement’s provision that it represented the “entire agreement.” 930 F.2d
at 1098.3 Melton involved a promise contained in the cover letter that the
Government would recommend a downward departure based on co-defendant
Roger’s “full and complete debriefing and substantial assistance to the
government.” Id. The cover letter was attached to the plea agreement, but the
plea agreement did not include the promise contained in the cover letter. Id. At
sentencing, the AUSA indicated that Roger complied with the terms of the plea
agreement, but declined to seek a downward departure. Id.
       On appeal, Roger argued that the Government’s failure to move for a
downward departure constituted a breach of the plea agreement. Id.                           In

       3
         In United States v. Fields, we confronted a similar issue as in Melton. 906 F.2d 139,
141 (5th Cir. 1990). In that case, the defendant argued that the Government breached a plea
agreement when it indicated in a cover letter that it would recommend a downward departure
if the defendant truthfully debriefed and cooperated with the Government. Id. The plea
agreement did not contain this condition and only stated that the defendant should give a “full,
complete, and truthful statement to law enforcement authorities. . . .” Id. The Government
subsequently remedied the situation by moving for a downward departure in the event that
the district court found substantial compliance by the defendant. Id. at 142. The district court
denied the Government’s motion because the defendant provided false statements during
debriefing. Id. We remarked that “[the cover letter and plea agreement], when read together,
demonstrate the agreement that if [defendant] gave a full debriefing and his full cooperation
then the [G]overnment would recommend a downward departure.” Id. We affirmed, however,
the district court’s ruling that the defendant did not provide “substantial assistance” based on
his false statements to law enforcement officials. Id. at 143.

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response, the Government asserted that we should ignore the cover letter and
“look no further than the four corners of the plea agreement.” Id. We ultimately
concluded that the record was “inadequate” to determine whether Roger relied
on the cover letter, accepted the Government’s promise, and fully complied under
the specific facts of the case. Id. We noted, however, that the cover letter was
“not part of the plea agreement proper [but] it [did] contain an offer by the
government which Roger ostensibly accepted.” Id. As such, we declined to apply
traditional contract principles and invoked Fields’s reasoning that “‘[t]he [cover
letter and plea agreement], when read together, demonstrate the agreement that
if Appellant gave a full debriefing and his full cooperation then the Government
would recommend a downward departure.’” Id. (quoting Fields, 906 F.2d at142).
The Melton court also highlighted that the Government has an obligation to
fulfill promises reasonably relied on by a defendant by stating:
            [T]he government may neither misrepresent its
            intentions nor renege on representations reasonably
            relied and acted upon by defendants and their counsel
            in instances such as here presented. . . . If Roger, in
            reliance on the letter, accepted the government’s offer
            and did his part, or stood ready to perform but was
            unable to do so because the government had no further
            need or opted not to use him, the government is obliged
            to move for a downward departure.

Id. at 1098-99.

      Similarly, in Garcia, the Fourth Circuit addressed the legal significance
of a cover letter-plea agreement coupling in a 28 U.S.C. § 2255 proceeding. 956
F.2d at 42. In Garcia, a cover letter, which was attached to a plea agreement,
memorialized an oral agreement by the Government that Garcia was not
required to cooperate with law enforcement as part of his plea deal. Id. The
plea agreement did not contain this provision, and Garcia subsequently pled
guilty. Id. Garcia was later subpoenaed to testify in grand jury proceedings but

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he refused, and he was held in contempt. Id. at 42-43. The Fourth Circuit
observed that plea agreements are construed consistent with commercial
contract principles but cautioned against the strict application of such principles
in the plea agreement context. Id. at 43. Based on these principles, the Garcia
court held that the promise contained in the cover letter was part of the plea
agreement. Id. at 44. Long does not identify, however, nor have we discovered,
any case in which a court looked beyond a cover letter attached to a plea
agreement. We decline to do so here.4
                                           D.
      This case is distinguishable from our decision in Melton and the Fourth
Circuit’s decision in Garcia. In both cases, the extrinsic promise was contained
in a cover letter attached to the plea agreement.             As a result, the courts
construed the cover letter and the plea agreement together. See Melton, 930
F.2d at 1098; Garcia, 956 F.2d at 44. In the instant case, the e-mail exchange
was not attached to the plea agreement, was completed weeks prior to Long’s
guilty plea, and copies thereof were not transmitted contemporaneously with
the plea. Accordingly, Melton and Garcia are inapposite.
      Although Long’s counsel asserts on appeal that he showed Long the e-mail
exchange prior to his guilty plea, the record demonstrates that, based on his own
responses during the plea colloquy, Long did not rely on the e-mail exchange in
pleading guilty. Of particular relevance, the district court inquired into whether
there were any extrinsic agreements not included in the plea agreement that
persuaded Long to plead guilty–the very argument that Long asserts in support
of his appeal. Specifically, the district court asked Long: “[A]re there any other
or different promises or assurances that were made to you in an effort to
persuade you to plead guilty that did not get written down in the plea

      4
        We have refused to consider even a cover letter that contained terms arguably more
favorable to the Government, the drafting party. See Elashyi, 554 F.3d at 502.

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agreement” and whether there was any “secret agreement out there someplace?”
Long responded in the negative. As “[s]olemn declarations in open court carry
a strong presumption of verity,” we give great weight to Long’s response that no
secret promises or agreements existed. See Blackledge v. Allison, 431 U.S. 63,
74 (1977). We further conclude that Long’s 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, Long, and Long’s counsel.5
                                             IV.
       For the foregoing reasons, we AFFIRM the sentence, which is based on the
district court’s ruling that the Government did not breach the plea agreement.




       5
        See United States v. Moody, 485 F. App’x 521, 523-24 (3d Cir. 2012) (concluding that
defendant’s argument that he reasonably relied on an e-mail exchange in which the AUSA
agreed to move for a downward departure if the defendant cooperated was unreasonable
because, inter alia, the merger clause stated that the plea agreement represented the complete
agreement).

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