[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11440 NOVEMBER 17, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00020-CR-01-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERONIMO ENRIQUE GASTELUM, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 17, 2009)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Geronimo Enrique Gastelum, Jr. appeals his convictions, following a guilty
plea, for conspiracy to possess with intent to distribute at least 1,000 kilograms of
marijuana, pursuant to 21 U.S.C. § 841 (b)(1)(A)(vii), and money laundering,
pursuant to 18 U.S.C. § 1956(a)(1). On appeal, Gastelum argues that the
government breached the plea agreement by arguing in favor of a two-level
increase for money laundering under § 2S1.1(b)(2)(B). After thorough review, we
affirm.
Whether the government breached a plea agreement is a legal question 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). However, if the defendant did not raise
the issue before the district court, we apply a plain error standard of review. Id. In
this case, Gastelum did not object to the government’s conduct during the
sentencing hearing. 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. United
States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). The defendant has the
burden of persuasion as to prejudice. United States v. Rodriguez, 398 F.3d 1291,
1299 (11th Cir. 2005).
We use an objective standard in interpreting plea agreements. In re Arnett,
804 F.2d 1200, 1202 (11th Cir. 1986). We will not accept any “hyper-technical”
or “rigidly literal” interpretations of a plea agreement. Id. at 1203. The
government must carry out the promises that it makes in the agreement. Santobello
v. New York, 404 U.S. 257, 262 (1971).
2
In the plea agreement, Gastelum and the government agreed that the
government would dismiss the other counts, and the government would
recommend an adjustment for acceptance of responsibility. With regard to
sentencing recommendations, the parties agreed that: (1) the applicable offense
guideline was § 2D1.1; (2) the criminal activity undertaken by Gastelum and
others, acting in concert, foreseeably involved 9,007 kilograms of marijuana; (3)
because a dangerous weapon was involved, a two-level enhancement would apply
pursuant to § 2D1.1(b)(1); and (4) a two-level enhancement based upon
Gastelum’s participation in the conspiracy would apply pursuant to § 3B1.1. The
plea agreement also contained a clause which provided that “[t]here are no other
agreements, promises, representations, or understandings between the Defendant
and the Government.” However, the plea agreement contained no language which
prohibited the government from arguing that the enhancement found in §
2S1.1(b)(2)(B) for the money laundering conviction should apply. Because the
government’s conduct at the sentencing hearing was consistent with its obligations
under the plea agreement, the government did not breach the plea agreement and
there is no error, much less plain error. Santobello, 404 U.S. at 262.1
AFFIRMED.
1
Accordingly, the motion of the United States to supplement the record on appeal is
DENIED.
3