                                                            FILED
                                                United States Court of Appeals
                   UNITED STATES COURT OF APPEALS       Tenth Circuit

                                TENTH CIRCUIT                       December 29, 2016

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
 v.                                                      No. 15-1110
                                              (D.C. No. 1:12-CR-00113-WYD-3)
 ELDER GEOVANY SABILLON-                                  (D. Colo.)
 UMANA, a/k/a Elder Umana, a/k/a
 Pablo Casillas,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.



      Elder Geovany Sabillon-Umana pleaded guilty to money laundering and

conspiracy to distribute heroin and cocaine. He was sentenced to ninety-six

months’ imprisonment, but we reversed and remanded that sentence in an earlier


      *
             The parties have not requested oral argument, and upon examining
the briefs and appellate record, this panel has decided that oral argument would
not materially assist the determination of this appeal. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument.

      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
appeal. On remand, the district court resentenced Mr. Sabillon-Umana to eighty-

four months’ imprisonment. He now appeals, arguing that during resentencing

proceedings, the government breached his plea agreement in two respects.

Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of

the district court.

                                         I

       In 2011 and 2012, Mr. Sabillon-Umana distributed heroin and cocaine for a

drug distribution organization (“DTO”) run by a man known as “Gordo.” R.,

Vol. I, at 21 (Plea Agreement, filed Oct. 23, 2012). Mr. Sabillon-Umana

eventually entered a plea agreement under which he pleaded guilty to money

laundering and conspiracy to distribute heroin and cocaine.

       The plea agreement provided for a potential substantial-assistance

downward departure. More specifically, the agreement provided that Mr.

Sabillon-Umana “underst[ood] and agree[d]” that, if he desired the government’s

consideration of a potential 18 U.S.C. § 3353(e) and U.S.S.G. § 5K1.1 motion for

downward departure, he would be “required to cooperate fully” by “providing

truthful and complete information and testimony,” appearing at required judicial

proceedings, and agreeing to continuances of his sentencing hearing until his

testimony had been provided. Id. at 14–15. The agreement also provided that the

government expressly “reserve[d] the sole right to evaluate the nature and extent

of the defendant’s cooperation and to make the defendant’s cooperation, or lack

thereof, known to the Court at the time of sentencing,” making clear that “in the


                                        -2-
exercise of [the government’s] discretion,” the government “may make a [18

U.S.C. § 3353(e) and U.S.S.G. § 5K1.1] motion . . . reflecting that the defendant

. . . provided substantial assistance.” Id. at 15.

      In exchange for Mr. Sabillon-Umana’s substantial assistance, the

agreement stated that the government “anticipate[d]” that a § 5K1.1 motion

would ask the court “to impose a sentence as much as 40% below the bottom of

the otherwise applicable Guidelines sentencing range,” assuming that the judicial

process allowed Mr. Sabillon-Umana to fully demonstrate his assistance to law

enforcement. Id. Furthermore, the agreement reiterated in the “GUIDELINES

PREDICTION” section that “the Government anticipate[d] asking the Court to

reduce the defendant’s sentence by up to 40% (measured from the bottom of the

otherwise applicable Sentencing Guideline range) for substantial assistance.” Id.

at 43–44 (emphasis omitted).

      Before Mr. Sabillon-Umana’s initial sentencing hearing, the government

filed a substantial-assistance motion in which it “request[ed] a departure from the

otherwise applicable Sentencing Guidelines range and the ten year statutory

minimum mandatory sentence for [the conspiracy charge], and from the otherwise

applicable Sentencing Guidelines range for [the money laundering charge].” Id.

at 94 (Gov’t’s § 5K1.1 Mot., filed June 27, 2013). In its motion, the government

requested a sentence of 108 months’ imprisonment; however, at the subsequent

initial sentencing hearing, the government changed its recommendation to a range




                                          -3-
of 96 to 120 months’ imprisonment. 1 See Supp. R., Vol. II, at 165 (Tr. of

Sentencing Hr’g, dated Aug. 15, 2013) (court stating that “[i]n the motion, . . .

the Government asked that I grant the downward departure under 5K1.1, and 18

[U.S.C. §] 3553(e), and impose a sentence of 108 months. However, [the

government], within the last 30 minutes, modified the motion to indicate that the

Court had a sentencing range of 96 months, to, . . . 120 months”); see also id. at

159 (government amending the downward-departure request stating that Mr.

Sabillon-Umana’s debriefing testimony was “full of prevarication”). 2

      At the initial sentencing hearing, the district court calculated a Guidelines

range of 121 to 151 months’ imprisonment, and observed that the statutory

mandatory minimum sentence was 120 months’ imprisonment. The court granted

the government’s substantial-assistance motion and sentenced Mr. Sabillon-

Umana to ninety-six months’ imprisonment, below the bottom of the Guidelines

range of 121 months’ imprisonment. We reversed and remanded that sentence on

appeal. See United States v. Sabillon-Umana, 772 F.3d 1328, 1335 (10th Cir.

2014).


      1
            The Presentence Investigation Report (“PSR”) filed six days before
the government’s substantial-assistance motion calculated a Guidelines range of
240 to 262 months’ imprisonment.
      2
              As grounds for its downward-departure request, the government
stated in its motion that Mr. Sabillon-Umana “ha[d] appeared and met to be
debriefed with staff of the office of the United States Attorney, Special Agents,
and Task Force Officers,” and that he “ha[d] indicated he would testify to the best
of his ability at trial if called upon to do so.” R., Vol. I, at 94.


                                        -4-
      During resentencing proceedings on remand, the government did not

request a forty-percent downward departure from the bottom of the Guidelines

range. Instead, in a “Statement Concerning [the] Re-Sentencing of [Mr. Sabillon-

Umana]” filed before the resentencing hearing, R., Vol. I, at 104 (filed Mar. 3,

2015), the government recommended a substantial-assistance departure to a range

of 96 to 120 months (the same recommendation it had made at the initial

sentencing hearing), noting that “[a] 96 month term of imprisonment would

represent a downward departure of 20% from the 120 month statutory minimum

mandatory sentence,” 3 id. at 114. In its pre-hearing Statement, the government

made clear that Mr. Sabillon-Umana’s “5K1.1 debriefing was difficult” because

“he generally limited his remarks and went no further than the information

already disclosed in discovery he had been provided with in the case, and his

utility as a witness would have been hampered by his unwillingness to admit the

extent and nature of his involvement in narcotics trafficking.” Id. at 114–15.

      At the subsequent resentencing hearing, the government clarified that it

believed that Mr. Sabillon-Umana’s sentence should be ninety-six months. The

government explained that this determination was “based on the statutory

mandatory, the thought . . . was to give a person a couple of years off, a couple of


      3
             The Addendum to the PSR filed during resentencing proceedings
calculated a Guidelines range of 97 to 121 months’ imprisonment, and noted that
the statutory mandatory minimum sentence was 120 months’ imprisonment. The
government’s low-end recommendation of ninety-six months did not represent a
forty-percent departure from the bottom of that Guidelines range.


                                        -5-
years benefit for allowing us to basically indicate for the fact that he did sign this

plea agreement.” R., Vol. III, at 30. The government continued that it “did not

think of [the downward departure] as a percentage off of any particular number

necessarily,” and that instead, it “was thinking about one year or two years off of

[the 120-month statutory mandatory minimum] sentence.” Id. at 32. In addition,

the government reiterated that Mr. Sabillon-Umana’s “debriefing was pretty

atrocious. It was very difficult, hard going. The defendant did a lot to minimize

his own involvement in anything. And . . . he was untruthful, incomplete, with

regard to other things.” Id. at 30–31. In fact, based on Mr. Sabillon-Umana’s

debriefing testimony, the government stated that it had “seriously considered not

giving him any 5K at all.” Id. at 31.

      At the resentencing hearing, the district court renewed its ruling granting

the § 5K1.1 substantial-assistance motion that the government had filed in the

initial sentencing proceedings. Id. at 28 (Tr. of Sentencing Hr’g, dated Mar. 18,

2015) (“[A]t the prior sentencing hearing I had granted the Government’s 5K

motion . . . . I will reaffirm the granting of that motion for purposes of this

resentencing so that there’s no ambiguity about that.”). Accordingly, the court

stated that it would “depart downward from the guideline range and . . . impose a

sentence below the minimum sentence required by statute [of 120 months].” Id.

at 64. The court calculated a Guidelines range of 97 to 121 months’

imprisonment. Then, it departed downward to a sentence of eighty-four months’

imprisonment.


                                         -6-
      Not only did the plea agreement provide for a potential substantial-

assistance downward departure, but it also provided for a potential minor-role

decrease. Specifically, the agreement stated: “the Government submits there

should be a two level decrease for [playing a] minor role in the offense if the

Court takes a broad view of the GORDO DTO conspiracy because the defendant

[wa]s a subordinate in relation to . . . GORDO, the activity of the conspiracy was

extensive, and the activity involved more than 10 persons.” R., Vol. I, at 41.

      During the initial sentencing proceedings, however, the PSR did not apply

a minor-role decrease in calculating Mr. Sabillon-Umana’s offense level. The

PSR explained:

             the defendant’s role was more than an “average participant” in
             the organization. The case agent informed that the defendant
             was [Gordo’s] “right hand man.” The factual basis of the plea
             agreement notes that defendant lent “managerial assistance to
             [Gordo].” Furthermore, he was entrusted with the wire
             transfer of $44,000, which he transferred to his Honduran bank
             account. On occasion, the defendant sourced the Gordo DTO
             with cocaine drug supplies obtained from another DTO. His
             contributions to the DTO were integral to the success of the
             organization.

R., Vol. II, at 62. Similarly, at the initial sentencing hearing, the government

argued that the minor-role decrease was not appropriate “[i]f you look at what

happened here in Colorado, which is how the probation officers looked at it,”

instead of taking a “very telescopic, very far away view of [the conspiracy].”

Supp. R., Vol. II, at 138. In line with both the government’s recommendation and

the PSR’s calculation, at the initial sentencing hearing, the district court used the



                                         -7-
PSR to calculate the offense level without the minor-role reduction. However, at

resentencing, the minor-role decrease was not discussed at all, and the court did

not apply it in calculating Mr. Sabillon-Umana’s offense level. See R., Vol. III,

at 63 (noting that “there are no adjustments for role in the offense”).

      This appeal followed.

                                         II

      Mr. Sabillon-Umana argues that during resentencing proceedings, the

government breached the plea agreement by: (1) not recommending a downward

departure from the bottom of the Guidelines range in its substantial-assistance

motion, and (2) not arguing for a minor-role decrease in offense level. We

address each of these claims in turn, and affirm.

                                         A

      Mr. Sabillon-Umana first argues that the government breached the plea

agreement by not seeking a substantial-assistance departure calculated from the

bottom of the Guidelines range. Below, we conclude that the government did not

breach the plea agreement with regard to its substantial-assistance departure

recommendation.

                                          1

      As a preliminary matter, the parties disagree about the applicable standard

of review. Mr. Sabillon-Umana argues that we should review de novo whether

the government breached the plea agreement. See, e.g., United States v.

Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008). The government


                                         -8-
responds that we should review only for plain error because, although Mr.

Sabillon-Umana argued below that “the bottom of the guidelines range was the

proper starting point for the departure . . . he never claimed that the government

breached the plea agreement.” Aplee.’s Br. at 8.

      We sidestep this dispute concerning the proper standard of review because

we conclude that even applying de novo review, Mr. Sabillon-Umana cannot

prevail on the merits.

                                         2

      Even applying de novo review, Mr. Sabillon-Umana cannot prevail on the

merits. Under the plain language of the plea agreement, the government did not

unequivocally promise to recommend a departure of a certain percentage below

the bottom of the Guidelines. Instead, the government retained discretion to

evaluate Mr. Sabillon-Umana’s cooperation, and that evaluation ultimately

resulted in a less favorable downward-departure recommendation.

      Mr. Sabillon-Umana argues that “the government breached its promise to

request a percentage reduction and departure based on the bottom of the

applicable guidelines’ range.” Aplt.’s Opening Br. at 8 (capitalization and

emphasis altered). He points to the plea agreement’s language that “the

Government anticipates asking the Court to reduce the Defendant’s sentence by

up to 40% (measured from the bottom of the otherwise applicable Sentencing

Guideline range) for substantial assistance.” R., Vol. I, at 44. Mr. Sabillon-

Umana argues that despite this language, the government did not argue for a


                                        -9-
downward departure from the bottom of the Guidelines range, but instead asked

for “a couple of years off of the statutory mandatory minimum sentence” of 120

months. Aplt.’s Opening Br. at 10 (citing R., Vol. III, at 30 (stating that the

government’s recommended downward departure was “based on the statutory

mandatory, the thought . . . was to give a person a couple of years off, a couple of

years benefit for allowing us to basically indicate for the fact that he did sign this

plea agreement”)). In Mr. Sabillon-Umana’s view, “[t]he government’s failure to

recommend a sentence where the basis of the substantial assistance departure was

calculated from the bottom of the Guidelines’ range breached the plea

agreement’s plain language” because “pursuant to . . . the plea agreement, the

government was required to recommend” such a departure. Aplt.’s Opening Br.

at 10.

         Mr. Sabillon-Umana’s brief, however, cites little in the way of legal

authority to support his position. Besides noting that 18 U.S.C. § 3553(e) allows

a departure below the statutory minimum, he cites only to United States v.

VanDam, 493 F.3d 1194, 1199 (10th Cir. 2007). 4 In VanDam, we stated that:

                     General principles of contract law define the content and
               scope of the government’s obligations under a plea agreement.

         4
             The only other legal authority cited in this section of Mr. Sabillon-
Umana’s brief is United States v. Mendoza-Haro, 595 F. App’x 829, 833 (10th
Cir. 2014), which Mr. Sabillon-Umana cites for the proposition that “a sentence
reduced under § 3553(e) for substantial assistance cannot be further reduced
based on the § 3553(a) factors.” Aplt.’s Opening Br. at 10. Mr. Sabillon-Umana
relies on Mendoza-Haro to argue that the reduction he seeks “is not prohibited
double-dipping” under § 3553(a) and (e). Id. Prohibited double-dipping,
however, is not at issue.

                                          -10-
            We thus look to the express language in the agreement to
            identify both the nature of the government’s promise and the
            defendant’s reasonable understanding of this promise at the
            time of the entry of the guilty plea.       We construe all
            ambiguities against the government, to the extent it is the
            drafting party. We evaluate the record as a whole to ascertain
            whether the government complied with its promise.

493 F.3d at 1199 (citations omitted). In that case, we held that the government

had breached a plea agreement because its “unambiguous language” required the

government to recommend a sentence “at the low end of the guideline range

found applicable,” but the government did not do so. Id. at 1199 (quoting the

record). Instead, the government recommended a sentence at the low end of the

range that it believed was applicable, even after the court held otherwise. Thus,

we concluded that the government had “directly contravened” its obligations

under the plea agreement. Id. at 1200.

      In the present case, however, Mr. Sabillon-Umana cannot point to any

unambiguous language in the plea agreement that the government directly

contravened. As the government points out, the relevant portions of the plea

agreement state only that the government “anticipate[d]” making a substantial-

assistance motion recommending a forty-percent downward departure from the

bottom of the Guidelines range. R., Vol. I, at 15; id. at 44. Moreover, the

agreement expressly conditioned any substantial-assistance motion on the

government’s assessment of Mr. Sabillon-Umana’s cooperation. See id. at 15

(stating that the defendant “underst[ood] and agree[d]” that, in order to secure a

substantial-assistance departure recommendation, he would be required to


                                         -11-
“cooperate fully” by, inter alia, “providing truthful and complete information

and testimony”); id. (stating that the government “reserve[d] the sole right to

evaluate the nature and extent of the defendant’s cooperation,” and that, “in the

exercise of its discretion,” it “may make a motion . . . reflecting that the

defendant . . . provided substantial assistance”). Critically, the government later

determined that Mr. Sabillon-Umana had provided little assistance to law

enforcement. See, e.g., id. at 114–15 (stating that Mr. Sabillon-Umana’s “5K1.1

debriefing was difficult” because “he generally limited his remarks and went no

further than the information already disclosed in discovery he had been provided

with in the case, and his utility as a witness would have been hampered by his

unwillingness to admit the extent and nature of his involvement in narcotics

trafficking”).

      Thus, there is no reason to conclude that the government failed to fulfill

any promise in the plea agreement or contravened the defendant’s reasonable

understanding of any promise. See VanDam, 493 F.3d at 1199–1200. We

therefore reject Mr. Sabillon-Umana’s first argument. 5




      5
               Mr. Sabillon-Umana also briefly argues that the district court “was
confused” about whether it could “depart downward from the Guideline range,”
and that, for this reason, we should “clarify what happens” when a “plea
agreement . . . requires” a substantial-assistance departure below the bottom of a
Guidelines range. Aplt.’s Opening Br. at 12 (emphasis added). However, we
need not address this issue because the plea agreement contained no such
requirement in this case; it merely described what the government anticipated it
would do, assuming Mr. Sabillon-Umana fully cooperated.

                                         -12-
                                           B

      In his second claim, Mr. Sabillon-Umana argues that “the government

breached the plea agreement by not recommending a two-level reduction for Mr.

Sabillon’s minor role in the conspiracy.” Aplt.’s Opening Br. at 13

(capitalization and emphasis altered). Applying plain-error review, we conclude

that the district court did not err, much less plainly, in failing to find a breach

because there was no binding obligation for the government to recommend the

minor-role downward adjustment.

                                           1

      The parties again disagree about the applicable standard of review. Mr.

Sabillon-Umana acknowledges that he did not make an objection concerning this

issue at the resentencing hearing, but maintains that de novo review applies

regardless of whether the issue was preserved. See Aplt.’s Opening Br. at 13

(citing VanDam, 493 F.3d at 1199 (“This Court reviews de novo the question of

whether the government has breached a plea agreement, even when the defendant

fails to preserve this objection below.”)). However, as the government points

out, VanDam’s standard-of-review holding is no longer good law; it was

overturned by the Supreme Court’s subsequent decision in Puckett v. United

States, 556 U.S. 129, 133 (2009). And, since Puckett, we have applied a plain-

error standard in the breach-of-plea-agreement context. See United States v.

Mendoza, 698 F.3d 1303, 1309 (10th Cir. 2012); see also United States v. Willis,

607 F. App’x 788, 790–91 (10th Cir. 2015).


                                         -13-
      Mr. Sabillon-Umana’s reply brief does not address this point, nor does it

argue that the district court plainly erred. Accordingly, we could determine that

Mr. Sabillon-Umana has waived any argument for plain error, and decline to

reach the merits of this issue at all. See, e.g., United States v. Ibarra-Diaz, 805

F.3d 908, 916 n.3 (10th Cir. 2015); United States v. Zander, 794 F.3d 1220, 1232

n.5 (10th Cir. 2015); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130–31 (10th

Cir. 2011). Nevertheless, we exercise our discretion to reach the merits of Mr.

Sabillon-Umana’s minor-role argument, and review for plain error. See Ibarra-

Diaz, 805 F.3d at 916 n.3.

                                          2

      Under plain-error review, Mr. Sabillon-Umana must show “(1) error, (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Mendoza,

698 F.3d at 1309 (quoting United States v. Weiss, 620 F.3d 1263, 1274 (10th Cir.

2010)). Mr. Sabillon-Umana has failed, however, to demonstrate any error, much

less one that is plain, and we therefore resolve this issue under the first prong of

the plain-error test.

      Mr. Sabillon-Umana argues that the government failed to seek a two-level

reduction for his minor role in the conspiracy, despite having promised to do so

in the plea agreement. See Aplt.’s Opening Br. at 13 (citing R., Vol. I, at 41

(stating that “the Government submits there should be a two level decrease for [a]

minor role in the offense”)). His brief, however, ignores other pertinent language


                                        -14-
in the plea agreement. Read in full, the relevant provision of the plea agreement

states: “the Government submits there should be a two level decrease for [a]

minor role in the offense if the Court takes a broad view of the GORDO DTO

conspiracy because the defendant [wa]s a subordinate in relation to . . . GORDO,

the activity of the conspiracy was extensive, and the activity involved more than

10 persons.” R., Vol. I, at 41 (emphasis added). As this language makes clear,

the government’s promise regarding the minor-role adjustment was conditioned

on the court taking a broad view of the conspiracy.

      At both initial sentencing and resentencing, the district court did not take a

broad view of the conspiracy. More specifically, the court held Mr. Sabillon-

Umana accountable for only his direct drug involvement—not the larger

conspiracy. See, e.g., Supp. R., Vol. II, at 131 (at initial sentencing hearing,

court stating that “it would be just wrong . . . to attribute all of the drug quantities

that are associated with the conspiracy with Mr. [Sabillon-]Umana”); R., Vol. III,

at 59–60 (at resentencing, court stating that, “I reject as not supported by the

facts in this case the Government’s assertion that all of the drugs that were a part

of the conspiracy in this case should be attributable to this defendant. I just don’t

believe that there is a factual basis for me to make that finding.”). The

government argues that as a consequence, it was not required to seek a minor-role

reduction under the plain language of the plea agreement. Mr. Sabillon-Umana

offers no explanation as to why that is incorrect. Given the view that the court

took of the conspiracy, we conclude that the government was under no obligation


                                         -15-
to request a minor-role reduction. Thus, we hold that the district court did not

err, much less plainly, in failing to find that the government breached the plea

agreement.

                                        III

      For the foregoing reasons, we AFFIRM the district court’s judgment.




                                      ENTERED FOR THE COURT


                                      Jerome A. Holmes
                                      Circuit Judge




                                        -16-
