[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 5, 2008
No. 07-15199 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60170-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HEATH HOWARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 5, 2008)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
After pleading guilty, Heath Howard appeals his conviction for conspiracy
to commit robbery on the grounds that the government breached the plea
agreement. After review, we affirm.
I. BACKGROUND
Howard pled guilty to one count of conspiracy to commit robbery, in
violation of 18 U.S.C. § 1951(a). In the plea agreement, Howard and the
government agreed to “jointly recommend that the court impose a sentence within
the advisory sentencing guideline range produced by application of the Sentencing
Guidelines” and “that the court neither depart upward nor depart downward under
the Sentencing Guidelines when determining the advisory sentencing guideline
range in this case.” The plea agreement also stated that the government “reserves
the right to inform the court and the probation office of all facts pertinent to the
sentencing process, including all relevant information concerning . . . the defendant
and the defendant’s background.”
The Presentence Investigation Report (“PSI”) determined that Howard
qualified as a career offender under U.S.S.G. § 4B1.1 based on his two prior felony
convictions for controlled substance offenses. After applying a three-level
reduction for acceptance of responsibility, the PSI calculated an advisory
guidelines range of 151 to 188 months’ imprisonment.
At sentencing, Howard argued that the district court should sentence him
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below the guidelines range based on the factors in 18 U.S.C. § 3553(a). Howard
argued that he played only a minor role in the conspiracy and that he was less
culpable than his codefendant Marcus Howard, who received a sentence of 84
months’ imprisonment. Howard also claimed that the PSI overstated his criminal
history in designating him as a career offender because one of the predicate
felonies occurred before his eighteenth birthday. Thus, Howard asked the district
court to exercise its discretion to impose a 84-month sentence, which would have
been the low end of the guidelines range if the career-offender enhancement was
not applied.
In response, the probation officer noted that Howard had two additional
felonies that would qualify him as a career offender even if the district court did
not consider the felony conviction disputed by Howard. The government argued
that Heath Howard’s criminal history was not overrepresented by his classification
as a career offender because Howard’s criminal activity started at age thirteen, he
“has been a menace ever since,” and “[h]e has not had a year where he is crime
free.” As to Howard’s culpability compared to his codefendants, the government
argued that Howard was not a minor participant in the offense. The government
explained that the parties believed that all participants in the conspiracy would be
sentenced as career offenders at the time that Howard’s plea agreement was signed,
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but they learned later that codefendant Marcus Howard did not have enough
predicate felonies to qualify as a career offender. Thus, the government
recommended that the district court sentence defendant Howard within the
advisory guidelines range and stated that it would not object to a sentence at the
bottom of the advisory guidelines range.
The district court found that defendant Howard’s criminal history was
accurate and appropriate for purposes of the career-offender enhancement. The
district court calculated an advisory guidelines range of 151 to 188 months’
imprisonment and sentenced Howard to 151 months’ imprisonment. Howard filed
this appeal.1
II. DISCUSSION
“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.
Furthermore, whether the government violated the agreement is judged according
to the defendant's reasonable understanding at the time he entered his plea.”
United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996) (quotation marks,
brackets, and citations omitted).
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We generally review de novo the legal question of whether the government breached a
plea agreement. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008), petition
for cert. filed (U.S. May 15, 2008) (No. 07-11001). However, because Howard did not object to
the government’s conduct in the district court, we review only for plain error. Id.
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We conclude that the government did not breach the plea agreement. First,
the government did not breach its promises in the plea agreement to recommend
that the district court sentence Howard “within the advisory guideline range
produced by application of the Sentencing Guidelines” and not depart upward or
downward from the guidelines range. To the contrary, the government
recommended that the district court sentence Howard within the advisory
guidelines range of 151 to 188 months’ imprisonment and stated that it would be
satisfied with a sentence at the lower end of that guidelines range. The
government’s agreement with the district court’s calculation of the advisory
guidelines range, which included the application of the career-offender
enhancement, is not equivalent to a recommendation that the district court depart
upward from the guidelines range. Compare U.S.S.G. § 4B1.1 (career-offender
enhancement), with U.S.S.G. § 4A1.3(a) (policy statement on upward departures
based on criminal history category underrepresenting criminal history).
Second, the government’s comments on Howard’s criminal history at
sentencing did not violate the plea agreement. The plea agreement explicitly
provided that the government may inform the district court of facts relevant to
sentencing, including information on Howard’s background. Furthermore, the
government’s statements were made only in response to Howard’s argument that
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the district court should vary downward from the advisory guidelines range
because it overrepresented his criminal history.
Thus, we affirm Howard’s conviction.
AFFIRMED.
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