[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 15, 2008
No. 08-11411 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00107-CR-ORL-28-UAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO ENRIQUE PERLAZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 15, 2008)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Ricardo Enrique Perlaza appeals his 37-month sentence, imposed following
his conviction on 1 count of possession with intent to distribute 500 grams or more
of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). On appeal, Perlaza
argues that the government breached his plea agreement by introducing post-arrest,
incriminating statements he made in a proffer, which his plea agreement barred the
government from introducing. He also argues that the district court erred in
determining the amount of drugs for which he was responsible because it based the
calculation on the post-arrest statements, which his plea agreement forbade the
court from considering, and because the court made no finding that his actions
were part of the same course of conduct or common scheme or plan as his offense
of conviction. Based on our review of the record and the parties’ briefs, we discern
no reversible error.
I. Breach of Plea Agreement
We review whether the government beached a plea agreement de novo, but
we review the district court’s factual findings as to the scope of a plea agreement
for clear error. United States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir.), cert.
denied, (U.S. Oct. 6, 2008) (No. 08-137).
“A material promise by the government, which induces a defendant to plead
guilty, binds the government to that promise. Whether the government violated the
agreement is judged according to the defendant’s reasonable understanding of the
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agreement when he entered the plea.” United States v. Thomas, 487 F.3d 1358,
1360 (11th Cir. 2007) (citation omitted).
Because the plea agreement does not reflect an agreement that the
government could not use incriminating statements Perlaza had already made to
state officers in calculating his guideline range, the government did not breach the
plea agreement.
II. Drug-Quantity Determination
“We review a district court’s determination of the quantity of drugs properly
attributable to a defendant for clear error.” United States v. Ryan, 289 F.3d 1339,
1347 (11th Cir. 2002). Objections to sentencing issues that are not raised in the
district court are reviewed for plain error and can only be corrected if there is an
error, that is plain, and that affects substantial rights. United States v. Rodriguez,
398 F.3d 1291, 1298 (11th Cir. 2005). If these criteria are met, a court of appeals
has the discretion to correct the error, but “should” correct the error only if it
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779,
123 L.Ed.2d 508 (1993) (quotation and alteration omitted). “Where errors could
have cut either way and uncertainty exists, the burden is the decisive factor in the
third prong of the plain error test, and the burden is on the defendant.” Rodriguez,
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398 F.3d at 1300.
To determine a defendant’s offense level, a district court may consider
“quantities of drugs not specified in the count of conviction.” U.S.S.G. § 2D1.1,
comment. (n.12). Under U.S.S.G. § 1B1.3(a)(2), the base offense level is to be
determined based on acts “that were part of the same course of conduct or common
scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also
U.S.S.G. § 1B1.3, comment. (n.3) (providing that “multiple counts of conviction
are not required for subsection (a)(2) to apply”). “For two or more offenses to
constitute part of a common scheme or plan, they must be substantially connected
to each other by at least one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3,
comment. (n.9(A)).
Because Perlaza admitted in his plea agreement that he was involved in four
other cocaine deliveries and because the government presented evidence that each
delivery involved three kilograms of cocaine, the district court did not clearly err in
determining that he was responsible for at least five kilograms of cocaine.
Perlaza’s argument – that the court failed to make a finding that his actions were
part of the same course of conduct or common scheme or plan as his offense of
conviction – fails because the district court implicitly made this finding by
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adopting the probation officer’s drug quantity calculations and because the court
was entitled to make this finding implicitly. Accordingly, we affirm.
AFFIRMED.
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