     Case: 09-20503 Document: 00511407659 Page: 1 Date Filed: 03/11/2011




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

                                                 FILED
                                                                           March 11, 2011
                                     No. 09-20503
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

RICHARD BELL,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:07-CR-271-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Richard Bell appeals his 121-month sentence, received after pleading
guilty to bank fraud and money laundering pursuant to a written plea
agreement.      The district court characterized the sentence as an upward
“departure” from the advisory Sentencing Guidelines, based on several factors,
inter alia: an under-represented criminal history; losses resulting from
uncharged conduct; and an offense level that did not reflect the seriousness of
the crimes. Bell claims: the Government breached a putative plea agreement,

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 09-20503 Document: 00511407659 Page: 2 Date Filed: 03/11/2011

                                  No. 09-20503

which was rescinded before sentencing; the Government failed to abide by a
stipulation of loss; the Government opposed improperly Bell’s being accorded
acceptance of responsibility; the increase to his sentence was based upon loss
amounts in excess of his stipulated loss; and the district court’s failure to give
notice of its intent to depart upwardly precludes the departure. A breach-of-
plea-agreement claim is reviewed de novo; factual findings, for clear error. See
United States v. Davis, 393 F.3d 540, 546 (5th Cir. 2004).
      First, Bell contends the Government breached a putative plea agreement
that would have allowed him to plead guilty in exchange for a 72-month
sentence. Contrary to Bell’s assertion, the proposed agreement was neither
executed by the parties nor accepted by the court before being rescinded and was
not binding or enforceable. See United States v. Molina-Iguado, 894 F.2d 1452,
1455-56 (5th Cir. 1990).
      Second, Bell contends the Government failed to abide by a stipulation of
loss, by urging the court to depart upward based on uncharged loss. After the
plea agreement was executed and accepted by the court, the parties stipulated
that Bell’s fraud resulted in a total loss of $1.6 million. Contrary to Bell’s
interpretation, the record makes clear the parties agreed to that stipulation for
purposes of Bell’s Guideline calculation, i.e., total amount of loss caused by
fraud. See James v. Wallace, 533 F.2d 963, 967 n.7 (5th Cir. 1976) (noting
stipulations effective only to extent they are products of mutual assent). That
fraud-loss stipulation, however, did not affect Bell’s Guidelines calculations
because, under the Guidelines for multiple counts, Bell’s offense level was based
on amount of laundered money, not fraud-loss.         See U.S.S.G. §§ 3D1.3(a),
2S1.1(a)(1). And, because the parties agreed to the stipulation after a plea
agreement was reached, the stipulated loss was not “part of the inducement or
consideration” for the plea. United States v. Munoz, 408 F.3d 222, 226 (5th Cir.
2005) (internal citation and quotation marks omitted).



                                        2
    Case: 09-20503 Document: 00511407659 Page: 3 Date Filed: 03/11/2011

                                  No. 09-20503

      Nevertheless, the Government did not act contrary to the stipulation: the
Government’s assertions for an upward departure did not contradict the
stipulation; and Bell has not shown the court’s consideration of uncharged loss
violated the stipulation or was otherwise an improper basis for the departure.
Moreover, the district court was not bound by that stipulation, and the
Government did no more than accurately state that law at sentencing. See
U.S.S.G. § 6B1.4(d), p.s.; United States v. Garcia, 902 F.2d 324, 326-27 (5th Cir.
1990).
      Third, Bell maintains the Government breached its plea agreement by
arguing at sentencing that he did not deserve credit for acceptance of
responsibility. The Government had agreed in the agreement not to oppose
Bell’s request for such credit “should [Bell] accept responsibility as contemplated
by the [Sentencing Guidelines]”. At sentencing, defense counsel acknowledged
this was “pretty standard language” and expressed his opinion, in the light of
that language, that the Government was not “backing out” of its agreement.
Arguably, that acknowledgment constitutes a waiver of this contention.
Assuming it was not a waiver, we review only for plain error. See Puckett v.
United States, 129 S. Ct. 1423, 1428 (2009).
      To show reversible plain error, Bell must show a clear or obvious error
that affects his substantial rights. Id. at 1429. If reversible plain error is
shown, our court retains discretion to correct it and, generally, will do so only if
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. Accordingly, Bell must show that, absent the Government’s
opposition, the district court would have granted him a reduction for acceptance
of responsibility. See id., at 1432-33, aff’g 505 F.3d 377, 386 (5th Cir. 2007).
      The   Government      opposed    giving   Bell   credit   for   acceptance   of
responsibility; however, its obligation to refrain from doing so was conditioned
on Bell’s showing acceptance of responsibility as contemplated by the Guidelines.
See U.S.S.G. § 3E1.1, cmt. n.1(a) (describing acceptance of responsibility). Bell

                                         3
    Case: 09-20503 Document: 00511407659 Page: 4 Date Filed: 03/11/2011

                                 No. 09-20503

never did so. During his sentencing hearing, which included more than an hour
of allocution, Bell:   offered exculpatory and irrelevant interpretations of
transactions and events; deflected responsibility; denied or discounted relevant
conduct; portrayed himself as a victim of unfair Government treatment; and
generally denied or minimized his culpability. It is not clear or obvious the
Government breached the plea agreement; nor is it clear or obvious the court
erred by failing sua sponte to declare a breach, where Bell’s conduct did not
trigger an obligation from the Government.
      Moreover, Bell fails to show any claimed breach or error affected his
substantial rights. He continued either to excuse or minimize his wrongful
conduct, thereby precluding credit for acceptance of responsibility. See Puckett,
505 F.3d at 386.
      Bell’s fourth contention challenges the upward departure by asserting the
district court encouraged him to waive an evidentiary hearing on loss and then
“sucker punched” him by increasing his sentence based on loss amounts
exceeding the stipulated loss. This challenge also fails. The record does not
support an inference of the court’s enticing Bell to abandon the evidentiary
hearing. Moreover, the presentence investigation report placed Bell on notice
that uncharged loss could be a basis for an upward departure. At sentencing,
Bell stated the uncharged loss was already accounted for in the loss stipulation,
yet he fails to explain what more could have been argued or accomplished in an
evidentiary hearing. Additionally, Bell never established the uncharged loss was
included within the stipulated loss, and the record refutes his interpretation of
the scope of the stipulation. See James, 533 F.2d at 967 n.7. Further, Bell fails
to show the uncharged loss was “double counted”, or otherwise improperly used,
to support the upward departure, especially where uncharged loss was only one
factor, as discussed supra, in support of departure.
      Last, Bell contends the court failed to give notice of its intent, and state
adequate reasons, to depart upward based on his understated criminal history.

                                        4
    Case: 09-20503 Document: 00511407659 Page: 5 Date Filed: 03/11/2011

                                  No. 09-20503

Because Bell failed to preserve this objection, his contentions are reviewed only
for plain error. E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 364
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v. Jones, 444 F.3d
430, 443 (5th Cir. 2006).
      Bell makes no showing that the lack of notice adversely affected his
substantial rights, because there is no indication the court would have imposed
a lesser sentence if notice had been given. See Jones, 444 F.3d at 443. The
Guidelines permit an upward departure if “the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit other crimes”.
U.S.S.G. § 4A1.3(a)(1). The prior convictions not counted in Bell’s criminal
history score were sufficient alone to support the departure. Id. at § 4A1.3(a)(2);
United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993). Further, as
noted supra, Bell’s under-represented criminal history was only one reason for
that departure. Thus, Bell fails to show that the lack of notice affected his
substantial rights by resulting in a more severe sentence. See Jones, 444 F.3d
at 443.
      The court did not fail to provide adequate reasons for the departure. The
court stated in writing and orally that Bell’s criminal-history category under-
represented his criminal history, see United States v. Zuniga-Peralta, 442 F.3d
345, 348 (5th Cir. 2006); and Bell has not shown the court would have imposed
a lesser sentence if it had given more detailed reasons for its departure, see
Mondragon-Santiago, 564 F.3d at 362-65.
      AFFIRMED.




                                        5
