[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 3, 2008
No. 08-10670 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00080-CR-ORL-31-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY JOE GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 3, 2008)
Before DUBINA, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant-appellant Randy Joe Gonzalez pleaded guilty to conspiracy to
possess with intent to distribute five or more kilograms of cocaine, in violation of
21 U.S.C. § 846. The offense carried a statutory mandatory minimum sentence of
120 months’ imprisonment. As part of the plea agreement, the government
promised to recommend a sentence within the guidelines range, to consider a
reduction for substantial assistance under U.S.S.G. § 5K1.1, and to move for a
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The
government further agreed that it would not oppose Gonzalez’s request for a
sentence below the statutory mandatory minimum under the safety-valve
provisions. The plea agreement also contained a waiver-of-appeal provision
barring Gonzalez from appealing the sentence imposed except in circumstances not
applicable here.
At sentencing, the government indicated that Gonzalez’s assistance to that
point did not warrant a reduction and thus any § 5K1.1 reduction was not ripe for
consideration. The government noted that it would re-evaluate whether to file a
motion in the future based on information received from Gonzalez. The court then
determined the adjusted offense level to be 29, the criminal history category to be
II, and the applicable guidelines range to be 120 to 121 months’ imprisonment due
to the mandatory minimum sentence. The court’s calculations included a reduction
for acceptable of responsibility. Gonzalez, however, never requested a reduction
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under the safety-valve provision. The court imposed the mandatory minimum
sentence of 120 months’ imprisonment. Gonzalez made no objections to the
sentence imposed.
On appeal, Gonzalez argues that the government breached the plea
agreement by making sentencing recommendations inconsistent with the
agreement and failing to move for a reduction for acceptance of responsibility. He
further contends the court was not bound by the mandatory minimum sentence
because the guidelines are advisory.
Generally, we review de novo whether the government has breached a plea
agreement. United States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir.), cert.
denied, 129 S.Ct. 288 (2008). Because Gonzalez failed to raise this issue before
the district court, however, we review any breach for plain error. United States v.
De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). Under plain error review,
“there must be (1) an error, (2) that is plain, (3) that affects the defendant’s
substantial rights, and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
Here, the government did not breach the plea agreement. All of the
government’s recommendations were consistent with the plea agreement, and
Gonzalez in fact received a three-level reduction under § 3E1.1. Moreover, the
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decision not to file a § 5K1.1 motion is within the prosecutor’s discretion and is
not subject to review unless the decision was based on an unconstitutional motive.
See Wade v. United States, 504 U.S. 181, 185-186 (1992). There was no such
unconstitutional motive in the instant case. Furthermore, Gonzalez’s challenge to
his sentence is barred by the plea agreement’s valid sentence appeal waiver.1 See
United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001); United States v.
Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).
Finally, there is no merit to Gonzalez’s argument that the court was not
bound by the statutory mandatory minimum sentence. Notably, Gonzalez did not
request a safety-valve reduction. And even if he had, he was ineligible due to his
criminal history. See U.S.S.G. § 5C1.2(a)(1). Moreover, this court has repeatedly
held that district courts are bound by mandatory minimum sentences even though
the sentencing guidelines are advisory. United States v. Shelton, 400 F.3d 1325,
1333 n.10 (11th Cir. 2005)
For the foregoing reasons, we affirm Gonzalez’s sentence.
AFFIRMED.
1
Gonzalez does not argue – cannot show – that the waiver was entered into involuntarily.
See Weaver, 275 F.3d at 1333. In fact, he concedes that he has waived his right to appeal his
sentence.
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