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                                                                                [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-12569
                              ________________________

                        D.C. Docket No. 1:88-cr-00743-JEM-8



UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                           versus

HARLAN SALMONA,

                                                                     Defendant-Appellant.

                              ________________________

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

                                     (January 8, 2016)

Before ED CARNES, Chief Judge, MARTIN, Circuit Judge, and THAPAR, *
District Judge.

ED CARNES, Chief Judge:

       *
       Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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      Not many people want to be locked up in a federal penitentiary serving a life

sentence. Harlan Salmona does because it beats the alternative, which is being

locked up in a state penitentiary that he believes is less safe. The problem for

Salmona is that his life sentence was imposed by a Florida state court, not by a

federal court. Salmona claims that because of a promise made to him by the

United States Attorney’s Office in a long ago plea agreement the federal

government is required to get him transferred from state to federal custody for the

remainder of his state sentence. This is his appeal from the district court’s order

denying his “Motion to Compel Compliance” with that plea agreement.

                                       I.

      In a four-count superseding indictment issued in 1988, the federal

government charged Salmona with crimes related to his involvement in a

marijuana smuggling operation. When Salmona discovered that one of his

codefendants had decided to cooperate with the government, he shot the man three

times in the face with a .357 magnum, which had the unsurprising effect of killing

him. As a result, the State of Florida indicted Salmona for first degree murder with

a firearm, and he later struck a deal and pleaded guilty to second degree murder




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with a firearm. A Florida state court accepted his plea and imposed a life sentence

in May 1989.

      That same month, Salmona negotiated a plea agreement with the federal

government in the marijuana smuggling case it had brought against him. He

apparently saw that deal as his ticket out of a Florida cell and into a federal one.

He wanted to serve his state sentence in federal custody because he believed he

would be in more danger in the state prison after the inmates there discovered he

was cooperating with federal authorities. As part of the federal deal Salmona

agreed to “cooperate fully and completely” with law enforcement, which included

giving “truthful statements” to law enforcement and truthful testimony before

grand and petit juries. The government agreed to give Salmona use immunity as to

those statements. In exchange for his truthful cooperation, the government also

agreed that: “The United States Attorney’s Office will apply to admit Harlan

Salmona into the federal witness protection program and will allow him to serve all

of his Florida State sentence . . . in federal custody.”

      The federal plea agreement specified that if Salmona gave “false material

statements” or testimony, the grant of use immunity would be “null and void,” and

the government could prosecute him for any crime and use any of his statements

against him. Nothing in the plea agreement specified whether the government was


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limited to those remedies if Salmona breached the agreement by giving false

testimony or otherwise.

      Salmona received a 35-year federal sentence that ran concurrently with the

life sentence he had received in the Florida state court. He began serving his state

and federal sentences in a federal prison in 1989. The United States Attorney’s

Office had already submitted Salmona’s name to the U.S. Marshals Service earlier

that year for acceptance into the Witness Protection Program, but the Marshals had

rejected it for reasons that are not disclosed in the record.

      Salmona’s testimony before a federal grand jury led to the indictment of an

individual for several narcotics violations, and he also testified as a government

witness at that person’s trial (the jury acquitted him). The government discovered

later that Salmona had “completely fabricated” his testimony before both the

federal grand and petit juries. Salmona admitted that he had lied before the grand

and petit juries. The government charged Salmona with four counts of perjury,

two of which he pleaded guilty to in September 1991. In 1992, even though his

original 35-year federal sentence had not expired, the government transferred

Salmona from federal to state custody. Other inmates in state prison discovered

his cooperation with federal authorities and assaulted him, prompting the prison to

place him in protective custody.


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      Soon after his transfer to state prison, Salmona began his efforts to enforce

the federal custody provision of his plea agreement. In 1992 he filed a motion to

enforce that provision in the same federal district court that had accepted his plea

agreement and sentenced him. Arguing that his perjury did not affect the

enforceability of the federal custody provision, Salmona asserted that the

government had violated that provision by refusing to submit his name to the

Marshals Service so that it could determine his eligibility for the Witness

Protection Program. The court ordered the government to submit his name to the

Marshals. The government complied with that order, but the Marshals again

rejected Salmona’s application.

      In early 1994 Salmona filed another motion to enforce the federal custody

provision of the plea agreement, arguing that the government’s failure to secure for

him an interview by the Marshals violated the district court’s 1992 order. The

government opposed that motion, contending that it had complied with the court’s

order because it had submitted Salmona’s name to the Marshals and that was all it

was required to do. The court denied Salmona’s motion.

      Undeterred, in late 1994 Salmona filed another motion, this time one under

28 U.S.C. § 2255. It sought the same relief his earlier motions had. This time the

government changed its position and filed in the district court a motion asking the


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court to order Salmona’s return to federal custody. The government acknowledged

that its position had changed and pointed out that the 1989 plea agreement called

for Salmona to serve his “concurrent sentences in federal custody.” The district

court granted the government’s motion and Salmona was transferred to federal

prison.

       Salmona remained in federal custody until June 2011, when he completed

his federal sentence.1 He was then transferred into state custody, where he has

been ever since serving his Florida sentence. In 2014, three years after he was

transferred back into state custody, Salmona filed in the district court another

“motion to compel compliance” with the plea agreement. The motion alleged that

being incarcerated with state inmates threatened his safety. Salmona did not deny

that he had breached the federal plea agreement, but asserted that the government’s

sole remedy for the breach was to void the grant of use immunity.

       The district court denied Salmona’s motion. It found that his perjury was a

substantial breach of the plea agreement that released the government from its

obligations. The court acknowledged that the plea agreement contained a “limited




       1
         Salmona began serving his 35-year federal sentence in 1989, and completed that
sentence in 2011. That is a total of 22 years. The record does not indicate how he was able to
complete his federal sentence 13 years short of the 35 years to which he had been sentenced.
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rescission clause” but found the lack of a “more robust rescission clause”

immaterial in light of Salmona’s substantial breach.




                                          II.

      The first issue that we face is whether the district court had subject matter

jurisdiction to decide Salmona’s motion. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94, 118 S. Ct. 1003, 1012 (1998) (noting that subject matter

jurisdiction is a threshold question). Without subject matter jurisdiction, a court

has no power to decide anything except that it lacks jurisdiction. See Univ. of S.

Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). We raise the

jurisdictional issue ourselves because we are obligated to do so. Id.

      It is Salmona’s burden to establish the jurisdictional basis for his motion to

compel compliance with the plea agreement. See Kokkonen v. Guardian Life. Ins.

Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 1675 (1994). Federal courts “are

courts of limited jurisdiction” that “possess only that power authorized by

Constitution and statute.” Id. Like any other exercise of jurisdiction, a district

court’s jurisdiction to enforce a plea agreement must originate with the

Constitution or a statute. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,


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541, 106 S. Ct. 1326, 1331 (1986); see also Kokkonen, 511 U.S. at 377, 114 S. Ct.

at 1675 (noting that federal jurisdiction “is not to be expanded by judicial decree”).

      There is no apparent jurisdictional basis for Salmona’s motion. He brought

his motion under Federal Rule of Criminal Procedure 11(c), but that rule governs

the procedures for negotiating plea agreements; it is not a grant of jurisdiction. His

motion to compel was not an appeal from his earlier conviction, and even if it had

been the district court is not an appellate court, so it had no appellate jurisdiction

over the matter.

      The best shot Salmona takes is 28 U.S.C. § 1361, which provides that

district courts “shall have original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.” In his motion to compel, Salmona

requested that “he be allowed to complete the service of his state-court sentence in

federal custody consistent with the terms and promises in his plea agreement with

the United States.” Mot. Compel at 12; see also Appellant Br. at 26 (asking that

we remand the case with instructions “to order [Salmona] transferred to federal

custody forthwith”). We have granted a petition for a writ of mandamus where the

plaintiff sought to force the government to adhere to a plea agreement’s terms. In

re Arnett, 804 F.2d 1200, 1201, 1204 (11th Cir. 1986). As we have recognized


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before, however, In re Arnett “did not explicitly hold that the district court had

jurisdiction over the defendant’s motion to enforce a plea agreement.” United

States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir. 2008). It did not mention

jurisdiction. When a decision decides the merits of a dispute without discussing

jurisdiction, there is no jurisdictional holding that binds a later panel considering

the jurisdictional issue. See Hagans v. Lavine, 415 U.S. 528, 533 n.5, 94 S. Ct.

1372, 1377 n.5 (1974) (“[W]hen questions of jurisdiction have been passed on in

prior decisions sub silentio, this Court has never considered itself bound when a

subsequent case finally brings the jurisdictional issue before us.”).

      Even if we assume that a district court potentially has jurisdiction to issue a

writ of mandamus to enforce compliance with a plea agreement a quarter of a

century after the agreement was entered, the existence of that jurisdiction would be

dependent upon the petitioner satisfying the stringent requirements for the writ to

issue. Those requirements are stringent because mandamus is a “drastic” remedy,

“to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Ct. for the N.

Dist. of Cal., 426 U.S. 394, 402, 96 S. Ct. 2119, 2123 (1976); see also Cash v.

Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (“Mandamus is an extraordinary

remedy which should be utilized only in the clearest and most compelling of

cases.”) (quotation marks omitted).


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      Courts have discretion as to whether to issue a writ of mandamus. Cash, 327

F.3d at 1257–58. We have held, for better or worse, that the test for mandamus

jurisdiction is “whether mandamus would be an appropriate means of relief.” Id. at

1258 (quotation marks omitted). Mandamus relief is appropriate only when: (1)

there is no other adequate remedy and (2) the “plaintiff has a clear right to the

relief requested” (in other words, the defendant must have “a clear duty to act”).

Id. In other words, “a writ of mandamus is intended to provide a remedy for a

plaintiff only if he has exhausted all other avenues of relief and only if the

defendant owes him a clear nondiscretionary duty.” Id. (quotation marks omitted).

      Even assuming that Salmona satisfies the first requirement for issuance of a

writ of mandamus, he does not satisfy the second one. He has no clear right to

relief. He has not shown that his right to relief is “indisputable.” Kerr, 426 U.S. at

403, 96 S. Ct. at 2124. His claimed right to the requested relief is disputable

because Salmona violated his promise in the agreement to make “truthful

statements before grand juries and petit juries.” He admitted to fabricating his

testimony before federal grand and petit juries, and he was convicted of perjury for

doing so. To state the obvious, by committing perjury Salmona substantially

breached his promise to provide truthful testimony, which was a key provision of

the agreement. See United States v. Wood, 780 F.2d 929, 929–32 (11th Cir. 1986)


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(holding that a defendant’s failure to tell law enforcement about certain drug

activities “amounted to a substantial breach” of his plea agreement, which required

him to “fully and truthfully disclose to law enforcement everything that he [knew]”

about those activities). A defendant’s substantial breach of a plea agreement

generally frees the government from its obligations under the agreement. See

United States v. Kelly, 337 F.3d 897, 901 (7th Cir. 2003) (“In general, a

defendant’s substantial breach of an unambiguous term of a plea agreement frees

the government to rescind the deal.”).

      What is less clear –– or more to the point, disputable –– is whether

Salmona’s substantial breach freed the government from all of its obligations under

this particular plea agreement, which specified that if Salmona did not provide

truthful testimony the government’s promise of use immunity would be null and

void. Salmona argues that provision should be interpreted to mean that voiding the

grant of use immunity is the sole remedy the government has for his breach by

perjury. He may be right. See United States v. Fitch, 964 F.2d 571, 576 (6th Cir.

1992) (stating that a provision in an immunity agreement allowing the government

to prosecute the defendant for perjury was the government’s sole remedy for his

breach). Or he may be wrong. See United States v. Cimino, 381 F.3d 124, 129 &

n.4 (2d Cir. 2004) (stating that the remedies available “following a [substantial]


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breach of [a plea agreement’s] express terms” are supplied “by general principles

of contract law,” which include the right of the government to rescind or cancel the

entire plea agreement); see also Ron Matusalem & Matusa of Fla., Inc. v. Ron

Matusalem, Inc., 872 F.2d 1547, 1551 (11th Cir. 1989) (“It is an established

principle of contract law that an injured party may terminate a contract for

breach . . . if the breach is [substantial].”) (quotation marks omitted).2 Because we

have never decided the issue and there is enough reason to go either way on it,

Salmona’s right to relief is disputable at best, and that is not good enough for

mandamus jurisdiction. Kerr, 426 U.S. at 403, 96 S. Ct. at 2124. 3

       Because the district court lacked subject matter jurisdiction over Salmona’s

claim, its judgment is VACATED and the case is REMANDED with instructions

to dismiss for lack of jurisdiction.




       2
         We interpret plea agreements “in a manner that is sometimes likened to contractual
interpretation.” United States v. Jeffries, 908 F.2d 1520, 1523 (11th Cir. 1990).
       3
          Salmona presents two other arguments as to why his perjury does not excuse the
government from complying with the federal custody provision of the agreement. He argues that
judicial estoppel bars the government from asserting that his perjury releases the government
from its obligations under the federal custody provision, because it allegedly took a different
position in 1995. He also argues that because the government has never before tried to cancel
the whole plea agreement, it has either ratified the federal custody provision or waived any
argument that it can cancel the entire agreement. Salmona does not provide, and we have not
found, any binding authority establishing that he is indisputably entitled to relief under either of
those two theories, so neither one suffices for mandamus jurisdiction. See Kerr, 426 U.S. at 403,
96 S. Ct. at 2124.
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MARTIN, Circuit Judge, concurring:

      I agree with the analysis of Part II of the Majority opinion, which leads me

to the conclusion that Mr. Salmona is not entitled to relief. Mr. Salmona materially

breached the plea agreement he seeks to enforce, so the government may be

entitled to rescind it. Mandamus jurisdiction is not therefore warranted here.

Unlike in the Arnett case relied upon by Mr. Salmona, he has no clear right to the

requested relief. I join the Majority in VACATING and REMANDING with

instructions to dismiss for lack of jurisdiction.




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