[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 1, 2007
No. 06-15940 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00042-CR-4-SPM-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH LUCIOUS THOMAS, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 1, 2007)
Before BIRCH, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Joseph Lucious Thomas Jr. appeals his sentence of 102 months of
imprisonment following his plea of guilty to mail fraud and identity theft. 18
U.S.C. §§ 1341, 1028A. Thomas contends that an argument of the government
regarding consecutive sentences breached the plea agreement. In that agreement,
the government promised not to recommend a specific sentence, but the
government reserved the right to “make arguments pertaining to the application of
the sentencing guidelines and the considerations set forth in Title 18, United States
Code, Section 3553(a).” In its sentencing memorandum, the government urged the
district court to give “serious consideration of the imposition of consecutive
penalties.” Because the argument of the government did not breach the plea
agreement, we affirm.
I. BACKGROUND
On August 1, 2006, Thomas was charged by information with one count of
mail fraud, 18 U.S.C. § 1341, and five counts of aggravated identity theft, 18.
U.S.C. § 1028A. Thomas waived indictment and entered a written plea agreement
with the government. The agreement forbade the government from recommending
a specific sentence, but allowed the government to advise the court about
sentencing considerations:
The United States Attorney agrees not to recommend a specific
sentence. However, the United States Attorney does reserve the right
to advise the District Court and any other authorities of its version of
the circumstances surrounding the commission of the offenses by
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DEFENDANT, including correcting any misstatements by defendant
or defendant’s attorney, and reserves the right to present evidence and
make arguments pertaining to the application of the sentencing
guidelines and the considerations set forth in Title 18, United States
Code, Section 3553(a).
Before the sentencing hearing, the United States Probation Office entered its
presentence investigation report based on the United States Sentencing Guidelines.
The presentence report calculated a Guidelines range of 24 to 30 months for the
mail fraud count and 24 months for each of the five counts of identity theft. The
Guidelines provided that the first 24-month sentence for identity theft run
consecutive to the sentence for mail fraud, but provided the option of running each
of the additional 24-month sentences consecutively.
The government filed a sentencing memorandum that described the facts of
the offenses and the sentencing options available to the district court, and the
government argued about the application of the sentencing factors in section
3553(a). The memorandum explained that Thomas’s conviction was a violation of
the terms of his probation for an earlier identity theft conviction, and the
Guidelines provided that the sentences for the violation of probation and the latest
offenses should run consecutively. The government argued that Thomas’s
“sentence must be adequately punitive in order to satisfy the sentencing factors of
Section 3553(a).” In support of that argument, the government urged the district
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court to impose at least some of the sentences consecutively:
Given the discretion of the court to impose consecutive two year
penalties on the Aggravated Identity Theft counts, it is not necessary
for the Government to seek an above guideline sentence. However, in
light of the above-referenced sentencing factors, the Government
submits that a reasonable sentence should include consecutive
sentences on some, if not all of the Aggravated Identity Theft counts.
In an effort to impose adequate punishment for the defendant’s
crimes, the defendant should be sentenced within the prescribed range
of 24-30 months imprisonment on count one and pursuant to the
statutory mandatory provisions on the remaining counts with serious
consideration of the imposition of consecutive penalties. Moreover,
the sentence should be consecutive to the defendant’s sentence on the
violation of supervised release in his earlier case . . . .
Thomas moved to strike the sentencing memorandum of the government on
the ground that it violated the terms of the plea agreement. The district court
denied that motion and sentenced Thomas to 102 months of incarceration. That
sentence consisted of 30 months for the mail fraud count; 24 months for the first
identity theft count; 24 months for the next four identity theft counts, with those
terms running concurrently to each other but consecutively to the sentences for
mail fraud and the first identity theft count; and 24 months for the supervised
release violation.
II. STANDARD OF REVIEW
We review de novo whether the government breached a plea agreement.
United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004).
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III. DISCUSSION
The issue presented is whether the government breached the plea agreement
when the government argued for some consecutive sentencing in its sentencing
memorandum. The government agreed “not to recommend a specific sentence,”
but reserved the right “to present evidence and make arguments pertaining to the
application of the sentencing guidelines and the considerations set forth in Title 18,
United States Code, Section 3553(a).” A material promise by the government,
which induces a defendant to plead guilty, binds the government to that promise.
Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971). Whether
the government violated the agreement is judged according to the defendant’s
reasonable understanding of the agreement when he entered the plea. United
States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). If the parties dispute the
meaning of the agreement, we interpret the terms of the plea agreement based on
objective standards. Id.
Thomas contends that the argument of the government for consecutive
sentences necessarily meant that the government was recommending a sentence in
the range of 6 to 13 years of imprisonment, and Thomas contends that argument
breached the plea agreement. The government responds that its argument
regarding the application of the Guidelines and section 3553(a) did not breach the
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agreement. We agree with the government.
This Court has not determined whether a recommendation of consecutive
sentences or a sentencing range amounts to a recommendation of a specific
sentence. At least one of our sister circuits has held that a recommendation of a
sentence within the Guidelines and a “lengthy” sentence for the non-Guidelines
counts breached the promise of the government to “make no recommendation as to
the specific sentence.” United States v. Hayes, 946 F.2d 230, 232 (3d Cir. 1991).
The Third Circuit concluded that an argument in favor of a range of incarceration
recommended a specific sentence. Id.
Hayes is distinguishable. In Hayes, the government reserved the right to
provide accurate information to the district court, but the government did not
reserve a right to make arguments about sentencing considerations. In its
agreement with Thomas, the government agreed not to recommend a specific
sentence but reserved “the right to present evidence and make arguments
pertaining to the application of the sentencing guidelines and the considerations set
forth in Title 18, United States Code, Section 3553(a).” In contrast with Hayes, the
government did not agree to make “no recommendation” about sentencing.
The government did not breach its agreement with Thomas. The arguments
of the government in its sentencing memorandum and at the sentencing hearing
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were within the rights of the government as expressly reserved in the plea
agreement with Thomas. The government made arguments regarding the
application of the Guidelines and the 3553(a) sentencing factors as applied to
Thomas’s conduct.
IV. CONCLUSION
Thomas’s sentence is
AFFIRMED.
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