           Case: 12-13432   Date Filed: 02/11/2013   Page: 1 of 6

                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13432
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:09-cr-00257-JDW-AEP-2



UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,


                                  versus


FRANKIE CUEVAS,


                                                         Defendant-Appellant.

                       ________________________

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

                            (February 11, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.
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PER CURIAM:

       Frankie Cuevas appeals his 180-month sentence after pleading guilty to one

count of conspiracy to possess with the intent to distribute and to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Upon review of the

record and consideration of the parties’ briefs, we affirm.

                         I. Breach of Plea Agreement Claim

       Cuevas argues that the district court plainly erred in failing to determine that

the government breached the plea agreement. Cuevas contends that the

government breached its obligations in the plea agreement to (1) provide him with

an opportunity to earn a substantial assistance motion pursuant to U.S.S.G.

§ 5K1.1 prior to sentencing, and (2) to make known to the district court the nature

and extent of his cooperation with the government. Cuevas argues that as a result

of the district court’s failure to correct these breaches, he is entitled to specific

performance of the plea agreement and resentencing or withdrawal of his plea.

       Because Cuevas failed to raise this plea-agreement-breach issue in the

district court, we review for plain error. United States v. Schmitz, 634 F.3d 1247,

1268 (11th Cir. 2011). To establish plain error, Cuevas must show: (1) an error,

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

fairness, integrity, or public reputation of judicial proceedings. United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir. 2007).


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      When a guilty plea rests on a promise by the government that is part of the

inducement or consideration, the promise must be fulfilled. United States v.

Nelson, 837 F.2d 1519, 1521 (11th Cir. 1988). The government violates a written

plea agreement when its conduct is inconsistent with the agreement’s terms that

reasonably were understood by the defendant when entering the guilty plea. Id. at

1521-22.

      The U.S. Sentencing Guidelines allow the district court to depart from the

advisory guidelines range if the government files a motion that states that the

defendant provided substantial assistance in an investigation or prosecution.

U.S.S.G. § 5K1.1. If the defendant provides substantial assistance to the

government after imposition of his sentence, the district court may also reduce the

sentence upon a motion from the government. Fed. R. Crim. P. 35(b).

      In his plea agreement, Cuevas agreed to cooperate fully with the United

States in the investigation and prosecution of other persons and to testify fully and

truthfully before a federal court or grand jury. The plea agreement provided that if

Cuevas’s cooperation was completed prior to sentencing, the government “agree[d]

to consider” whether the cooperation warranted the filing of a § 5K1.1 motion

requesting a downward departure from the applicable guidelines range. If the

cooperation was completed after sentencing, the government agreed to consider

whether Cuevas’s cooperation warranted the filing of a motion for reduction of


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sentence under Federal Rule of Criminal Procedure 35(b). The plea agreement

also stated that “the determination as to whether ‘substantial assistance’ has been

provided or what type of motion related thereto will be filed, if any, rests solely

with the United States Attorney.” The government promised to “make known to

the Court and other relevant authorities the nature and extent of defendant’s

cooperation.” Cuevas claims that these provisions obligated the government to

debrief him and give him the opportunity to cooperate prior to his sentencing.

      Here, the district court did not plainly err when it did not determine that the

government breached the plea agreement. The plea agreement nowhere promises

that the government will debrief Cuevas and give him time to cooperate prior to

any sentencing. And the terms of the plea agreement could not have reasonably

been understood to obligate the government to debrief Cuevas prior to sentencing.

See Nelson, 837 F.2d at 1521-22. Indeed, the agreement specifically contemplated

that Cuevas might cooperate after sentencing. Additionally, the plea agreement did

not explicitly require the government to provide Cuevas with an opportunity to

cooperate. The government merely agreed “to consider” whether any such

cooperation, once it was completed, qualified as substantial assistance. Further, at

sentencing Cuevas never requested the district court to continue the sentencing in

order to give Cuevas more time to cooperate and be debriefed prior to any

sentencing.


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       In any event, contrary to Cuevas’s assertion, the government did make

known to the district court the extent of his cooperation as of that time. At

sentencing, the government informed the district court of Cuevas’s efforts to

cooperate and specifically that Cuevas had made himself available to give

information, but that the government simply had not yet debriefed him.

       Given the stringent standard of review here, we cannot say Cuevas has

shown plain error.

                               II. Eighth Amendment Claim

       Next Cuevas challenges his 180-month sentence as grossly disproportionate

to his offense in violation of the Eighth Amendment. Cuevas argues that his

sentence is grossly disproportionate because he was sentenced as a career offender

under U.S.S.G. § 4B1.1 based on his previous state drug felony convictions. 1 He

asserts that career offender status is for defendants who have committed extremely

serious prior offenses, in contrast to his prior convictions for state drug offenses

that did not require knowledge of the nature of the controlled substances. Because


       1
         The Sentencing Guidelines classify a defendant as a career offender where, inter alia, he
has at least two prior felony convictions for a crime of violence or a controlled substance
offense. U.S.S.G. § 4B1.1(a). Cuevas does not dispute that he had two prior state felony drug
convictions. Cuevas also did not object to the guidelines calculations in the presentence
investigation report or the district court’s calculations of his advisory guidelines range of 188 to
235 months.
        The district court sentenced Cuevas to 180 months’ imprisonment, and Cuevas raises
only an Eighth Amendment claim on appeal. In his plea agreement, Cuevas waived his right to
appeal his sentence except on the basis, inter alia, that the sentence violates the Eighth
Amendment.
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at the sentencing, Cuevas did not object to the 180-month sentence, we review for

plain error. See Schmitz, 634 F.3d at 1268.

       The Eighth Amendment prohibits the infliction of cruel and unusual

punishment. U.S. Const. amend. VIII. In non-capital cases, a defendant seeking

relief under the Eighth Amendment must first show that the sentence was grossly

disproportionate to the offense. United States v. Johnson, 451 F.3d 1239, 1243

(11th Cir. 2006). In general, a sentence within the statutory limits for an offense is

not grossly disproportionate. Id.

       Because Cuevas’s Eighth Amendment challenge fails on the merits, we need

not reach the government’s invited error claim. Here, Cuevas was sentenced to

180 months’ imprisonment. The offense in this case carried a maximum statutory

sentence of 30 years’ imprisonment. 21 U.S.C. § 841(b)(1)(C). Because the

district court sentenced Cuevas under the statutory limit, Cuevas has not made a

threshold showing of disproportionality with respect to his sentence. See Johnson,

451 F.3d at 1243. Therefore, Cuevas cannot show that his sentence was imposed

in plain error.

       AFFIRMED.




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