[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11728 ELEVENTH CIRCUIT
SEPTEMBER 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-20063-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN EUGENE HABER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 10, 2009)
Before DUBINA, Chief Judge, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Appellant Martin Eugene Haber, appearing pro se, appeals his 78-month
sentence for mail and wire fraud. The challenged sentence was the result of a
resentencing ordered by this court in Haber’s prior appeal. See United States v.
Haber, 299 Fed. Appx. 865 (11th Cir. 2008) (“Haber I”).
Haber first argues that the government breached the plea agreement at the
resentencing by failing to recommend a three-level reduction for acceptance of
responsibility and by failing to recommend a sentence at the low end of the
guideline range. Significantly, Haber does not argue that the district court erred in
finding that he engaged in misconduct post-agreement, and does not dispute that
the plea agreement expressly relieves the government of these two
recommendation requirements where post-agreement misconduct is shown.
Rather, he argues that the government should have been estopped from introducing
evidence of his misconduct because the misconduct was actually or constructively
known to the government before the Rule 11 plea colloquy.
“Whether the Government breached a plea agreement is a question of law
that we review de novo.” United States v. De La Garza, 516 F.3d 1266, 1269 (11th
Cir. 2008), cert. denied, 129 S. Ct. 1668 (2009). The question of breach “is judged
according to the defendant’s reasonable understanding at the time he entered his
plea.” United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992). “[T]he
Government breaches a plea agreement where the Government introduces or
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supports facts at sentencing that contradict the facts stipulated to in the agreement.”
De La Garza, 516 F.3d at 1270.
Under the express terms of the plea agreement, the government was not
required to recommend an acceptance of responsibility reduction or a sentence at
the low end of the guideline range if Haber engaged in illegal activities or other
misconduct after the date of the plea agreement. The agreement contains no
requirement that the government disclose to Haber its discovery of any post-
agreement misconduct by him, or disclose in advance its intention not to make any
particular recommendation at sentencing as a result of that misconduct, and Haber
cites no such contractual duty in his brief. Because the plea agreement is silent on
this issue, we conclude that Haber’s estoppel argument is without foundation.
Haber next argues that the government breached the plea agreement by
failing to recommend a sentence within the guideline range at the resentencing.
Again, whether the government breached a plea agreement is a question of law
which we typically review de novo. Id. at 1269. Although, where, as here, no
contemporaneous objection was made regarding the alleged breach, we review for
plain error. Id. “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.
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“For an error to affect substantial rights, ‘in most cases it means that the error must
have been prejudicial: It must have affected the outcome of the district court
proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.
1770, 1778 (1993)). The defendant has the burden of persuasion as to prejudice.
Id.; see also Puckett v. United States, __ U.S. __, 129 S. Ct. 1423, 1428-29, 1432-
34 and n.4 (2009) (applying plain error review to forfeited claims about an alleged
government breach of a plea agreement, and clarifying that question of prejudice
does not relate to whether defendant would have entered into the plea, but rather,
whether his sentence was affected).
The plea agreement contained a number of stipulations, one of which
obligated the government and Haber to jointly recommend that the court find the
loss resulting from the offense was more than $400,000 and less than $1,000,000.
Haber, however, took the position at resentencing that the court should
independently determine the loss amount. Haber argued that the “amounts listed
by the Government weren’t the loss amounts” and put on evidence that the amount
of loss was less than $400,000. (Resentencing Transcript, R. 9-153 at 32-36.)
When Haber failed to recommend that the court find the loss in accordance with
the plea agreement, the government was no longer obligated by the plea agreement
to recommend a guideline-range sentence. See Puckett, 129 S. Ct. at 1432 n.2
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(government’s obligations under plea agreement may be excused where the
defendant breaches the agreement).
Even to the extent the government’s failure to recommend a guideline
sentence might be deemed a breach of the plea agreement, we conclude that Haber
has not demonstrated plain error. Puckett establishes that where the government
has breached a plea agreement, a defendant can only show plain error by
demonstrating that his sentence was affected by the breach. 129 S. Ct. at 1432-33
(“The defendant whose plea agreement has been broken by the government will
not always be able to show prejudice, either because he obtained the benefits
contemplated by the deal anyway . . . or because he likely would not have obtained
those benefits in any event . . . .”). Here, Haber received a sentence within the
guideline range notwithstanding the government’s alleged breach regarding a
within-guideline recommendation, so there was no prejudice.
For the aforementioned reasons, we affirm Haber’s sentence.
AFFIRMED.
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