[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-5099
Non-Argument Calendar
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
08/19/98
D.C. Docket No. 95-Cr-6124-WJZ THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERIBERTO MAHIQUE,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(August 19, 1998)
Before TJOFLAT and EDMONDSON, Circuit Judges, and CLARK, Senior Circuit Judge.
PER CURIAM:
Heriberto Mahique appeals his 188-month sentence imposed for
conspiracy to possess cocaine with the intent to distribute.1
Mahique entered into a plea agreement with the government in which the
government agreed not to oppose Mahique's request for a reduction of his base offense
level based on acceptance of responsibility if he made a "full and accurate disclosure
to the Probation Office of the circumstances surrounding the defendant's relevant
conduct."2 The government also agreed not to oppose Mahique's request to be
sentenced under the safety-valve provision "if he is eligible, and the Court makes
appropriate findings regarding the criteria . . . ."3 Further, the government agreed not
to oppose Mahique's request to be sentenced at the lower end of the applicable
Guidelines range, but reserved the right to make a recommendation as to the quality
and quantity of punishment and to inform the court and probation of all facts relevant
to sentencing.
Mahique failed to appear at his original sentencing, and was sentenced
only after he was arrested on a fugitive warrant in Mexico and extradited to the United
States. Mahique made a full confession, but then attempted to retract part of his
admissions during his interview for the presentence report. Based on Mahique’s
1
21 U.S.C. § 846.
2
R1-74 at 3.
3
R1-74 at 4; 18 U.S.C. § 3553(f)(1)-(5).
2
fleeing the jurisdiction and altering his story, the government opposed a reduction for
acceptance of responsibility and sentencing under the safety-valve provision. Mahique
moved to withdraw his plea and to enforce the plea agreement, arguing that his plea
was involuntary and that the government had breached the plea agreement.
Before imposing sentence, the district court asked Mahique and his
attorney if they had anything to say, but neither requested sentencing at the low-end
of the range. Based on the government's request, the district court sentenced Mahique
at the high-end of the range finding that he had given perjured testimony. The parties
said that there were no objections when asked by the district court after the imposition
of sentence.
On appeal, Mahique asserts that the district court erred in not granting
his motions to withdraw his plea or to enforce specifically the plea agreement,
asserting that the government breached the plea agreement by opposing his request for
a reduction for acceptance of responsibility and to be sentenced under the safety-valve
provision of 18 U.S.C. § 3553(f). Mahique also asserts that the government breached
the plea agreement by recommending that he be sentenced at the high-end of the
applicable guideline range.
3
Whether the government has breached a plea agreement is a question of
law that this court reviews de novo.4 If, however, the district court affords a defendant
an opportunity to object after the imposition of sentence, and he fails to do so, any
objections to the sentence are barred absent manifest injustice.5 This court equates
the manifest injustice inquiry with review for plain error.6
Upon review of the presentencing report, the sentencing transcript, the
plea agreement, the district court's order, and after considering the parties' briefs and
the relevant law, we find no reversible error.
The government did not breach the plea agreement. The government's
promise not to oppose Mahique's request for a reduction of sentence was conditioned
on Mahique making a full and accurate disclosure to probation, which Mahique did
not do. In the plea agreement the government preserved its right to support the
probation recommendation regarding acceptance of responsibility, and did so by
opposing any reduction. Further, the government had a right to oppose Mahique's
4
United States v. Carlson, 87 F.3d 440, 447 (11th Cir. 1996), cert. denied, U.S. ,
118 S.Ct. 238, 139 L.Ed.2d 169 (1997).
5
United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906, 111
S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds, United States v. Morrill, 984
F.2d 1136 (11th Cir. 1993).
6
United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir. 1993), cert. denied, 510
U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 698 (1994).
4
request for a reduction based on his less than full and accurate disclosure to probation
and his flight from jurisdiction.7
The government's promise in the plea agreement not to oppose Mahique's
request to be sentenced under the safety-valve provision was conditioned on him
being eligible for the provision and the district court finding that he met all criteria for
application of the provision. The fifth criteria of the safety-valve provision requires
that the defendant truthfully provide to the government all information and evidence
he has regarding the offense.8 Because the government argued that Mahique was
ineligible for the safety-valve provision since he did not meet the criteria--a condition
of the plea agreement--there was no breach.9
We conclude that the government's opposition to a reduction for
acceptance of responsibility and sentencing under the safety-valve provision did not
constitute a breach of the plea agreement. Because Mahique never requested to be
sentenced at the low-end of the sentencing range, the government's recommendation
7
United States v. Ashurst, 96 F.3d 1055, 1057 (7th Cir. 1996) (plea agreement does not
obligate the government to recommend acceptance of responsibility when defendant committed
offense when on release pending sentencing); also see United States v. Pace, 17 F.3d 341, 343
(11th Cir. 1994) (district court is authorized to consider subsequent criminal conduct, even if
unrelated, in determining whether a decrease for acceptance of responsibility is appropriate).
8
18 U.S.C. § 3553(f)(5).
9
United States v. Ajugwo, 82 F.3d 925, 928-929 (9th Cir. 1996), cert. denied, U.S. ,
117 S.Ct. 742, 136 L.Ed.2d 680 (1997).
5
that Mahique be sentenced at the high-end of the sentencing range was not a breach
of the plea agreement.
AFFIRMED.
6