           Case: 12-16408    Date Filed: 11/21/2013   Page: 1 of 8


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16408
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:12-cr-00014-MTT-CHW-8



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                   versus


PHILLIP HARLEY,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                            (November 21, 2013)

Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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       Phillip Harley asks us to vacate the 90-month sentence imposed by the

district court after he pleaded guilty to conspiracy to possess with intent to

distribute methamphetamine. Harley contends that the government breached his

written plea agreement by arguing for an obstruction of justice enhancement, under

§ 3C1.1 of the United States Sentencing Guidelines.


                                               I.

       On April 11, 2012 Harley and twelve others were indicted for conspiring to

possess with intent to distribute more than 500 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. At his arraignment, Harley pleaded

not guilty and was released from custody pending trial under certain conditions,

among which were to appear in court as required, to refrain from possessing and

using illegal drugs, and to participate in substance abuse therapy.

       About two months after his release, on July 23, 2012, Harley failed to appear

at a pretrial conference; the district court designated the case ready for trial in his

absence. Harley changed his mind and decided to plead guilty, prompting the

court to set a change of plea hearing for July 30, 2012. Once again Harley failed to

appear.1 The district court then revoked Harley’s pretrial release for failing to

appear at the two court proceedings.

       1
        At Harley’s sentencing, his counsel explained that transportation trouble caused both
absences.


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       On August 9, 2012 Harley entered a written plea agreement with the

government and pleaded guilty to a superseding information charging him with one

count of conspiracy to possess with intent to distribute methamphetamine. In

exchange for Harley’s guilty plea, the government agreed to recommend a

reduction to Harley’s guidelines range under U.S.S.G. § 3E1.1(a) if he

“affirmatively manifest[ed] an acceptance of responsibility as contemplated by the

Sentencing Guidelines.” 2 Nevertheless, the government reserved the right to

provide the district court with information showing that Harley had not accepted

responsibility, including any additional criminal conduct, and specifically, any

personal use of a controlled substance. Nowhere in the plea agreement did the

government promise not to recommend an obstruction of justice enhancement.

After the change of plea hearing, Harley’s case was set for sentencing.

       The presentence investigation report recommended a two-level enhancement

for obstruction of justice under U.S.S.G. § 3C1.1 based on Harley’s failure to

appear in court on July 23 and July 30, 2012. 3 The PSR also recommended

denying a sentencing reduction for Harley’s acceptance of responsibility under


       2
         The guidelines instruct the court to decrease a defendant’s offense level by two levels if
he “clearly demonstrates acceptance of responsibility for his offense . . . .” U.S.S.G. § 3E1.1(a)
(Nov. 2011).
       3
         The guidelines instruct the court to increase a defendant’s offense level by two if he
“willfully obstructed or impeded, or attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or sentencing of the instant offense of
conviction . . . .” U.S.S.G. § 3C1.1.
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§ 3E1.1 because Harley failed to appear at court proceedings, continued to use

meth while on pretrial release, and failed to comply with required substance abuse

treatment. Harley objected to both the obstruction enhancement and the denial of

acceptance of responsibility. The government filed a written response to Harley’s

objections, arguing in favor of the obstruction enhancement and against acceptance

of responsibility.

      The day before Harley’s sentencing, the district court raised the issue of

whether the government’s written response constituted a breach of the plea

agreement. At sentencing the next day, the government reversed its position on

acceptance of responsibility and recommended that the court apply that decrease.

Harley agreed with the court that the government’s change of position regarding

acceptance of responsibility resolved the breach issue.

      In spite of that apparent resolution, the government maintained its position

on the obstruction enhancement based on Harley’s two failures to appear in court.

Harley then retracted his earlier concession that the breach issue was resolved,

arguing that the guidelines and case law treat obstruction of justice and acceptance

of responsibility as “going hand-in-glove” and that a recommendation for an

obstruction enhancement is, for all intents and purposes, a recommendation for the

denial of acceptance of responsibility. The court stated that it was not going to

apply the obstruction enhancement anyway, so it considered the breach issue moot.


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Despite that, the court denied Harley a guidelines’ reduction for acceptance of

responsibility. After finding that Harley’s offense level was 24, that his criminal

history category was IV, and that the applicable guidelines range was 77 to 96

months imprisonment, the court sentenced Harley to 90 months imprisonment.

                                                II.

       We review de novo the question of whether the government has breached a

plea agreement. United States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008).

“The government is bound by any material promises it makes to a defendant as

part of a plea agreement that induces the defendant to plead guilty.” United States

v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). To determine whether the

government violated a plea agreement, we look at “whether the government’s

conduct is inconsistent with what was reasonably understood by the defendant

when entering the plea of guilty.” United States v. Nelson, 837 F.2d 1519, 1521–

22 (11th Cir. 1988); see also United States v. Boatner, 966 F.2d 1575, 1578 (11th

Cir. 1992).4



       4
         Whether the district court was influenced by the government’s recommendation is not
dispositive. See Santobello v. New York, 404 U.S. 257, 262–63, 92 S.Ct. 495, 499 (1971)
(remanding the case after holding that there was a breach of a plea agreement, even though the
sentencing judge stated that the breach did not influence the sentence); see also United States v.
Johnson, 132 F.3d 628, 630 (11th Cir. 1998) (stating that “the sentencing judge’s acts are not
important” to the issue of breach because the government, not the court, breached the plea
agreement); United States v. Tobon-Hernandez, 845 F.2d 277, 280 (11th Cir. 1988) (“In this
case, we do not address the district court’s exercise of discretion in imposing a sentence. Rather,
we focus on the government’s violation of its plea agreement.”)
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      It is undisputed that the government agreed to recommend that Harley be

given credit for acceptance of responsibility if he affirmatively manifested such

acceptance. It is at least arguable that the government breached the plea agreement

when it recommended the denial of an acceptance of responsibility reduction in

response to Harley’s PSR objections. But even if this was a breach, the district

court and the parties treated it as having been cured by the government’s

recommendation of such a reduction at the outset of the sentence hearing.

Although Harley later retracted his statement that the breach issue was resolved,

that retraction was based on the government’s continued argument in favor of an

obstruction of justice enhancement, which is the only breach allegation at issue in

this appeal.

      Harley contends that the government’s recommendation of the obstruction

enhancement was nothing but a “back-door argument to deny him acceptance of

responsibility” and thus a breach of the plea agreement. He argues that when he

entered his guilty plea, he reasonably understood that the government would not

later argue facts to the district court that could result in the denial of an acceptance

of responsibility reduction. The government counters that its promise to

recommend acceptance of responsibility did not preclude it from arguing in favor

of the obstruction enhancement, because even though the two guidelines provisions

are related, they are not mutually exclusive.


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      The guidelines commentary clearly supports the government’s position:

      Conduct resulting in an enhancement under § 3C1.1 (Obstruction of
      Justice or Impeding the Administration of Justice) ordinarily indicates
      that the defendant has not accepted responsibility for his criminal
      conduct. There may, however, be extraordinary cases in which
      adjustments under both §§ 3C1.1 and 3E1.1 may apply.

U.S.S.G. § 3E1.1, cmt. n.4 (emphasis added). “Ordinarily” does not mean always.

It is possible for one or both or neither of the guidelines provisions to apply. This

is possible because they are independent guidelines provisions serving different

purposes. Thus, the government’s promise to recommend an acceptance of

responsibility reduction could not have been reasonably understood by Harley as a

promise to also refrain from recommending an obstruction enhancement. The plea

agreement was completely silent on that issue. This is true regardless of whether

the government knew of the facts supporting the obstruction enhancement when it

entered the plea agreement. See United States v. Has No Horses, 261 F.3d 744,

750 (8th Cir. 2001) (holding that there was no breach even though “the

government knew of the allegations that supported the obstruction enhancement at

the time the plea agreement was entered” because “the agreement is simply silent

on the issue of obstruction”).

      Harley argues that the government should be held accountable for its

promise regarding acceptance of responsibility because doing so will give

defendants an incentive to enter into plea agreements. We agree with that


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statement as a matter of policy, and if the government had breached its agreement

to recommend acceptance of responsibility, we would hold it accountable for that

breach. But the government didn’t breach the plea agreement in this case.

Because a promise to recommend acceptance of responsibility does not foreclose

the government from arguing in favor of an obstruction enhancement, it follows

that the government had no duty to refrain from arguing facts supporting that

enhancement, even if some of those facts overlapped with facts supporting a denial

of acceptance of responsibility.

      AFFIRMED.




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