USCA11 Case: 22-14020 Document: 52-1 Date Filed: 03/18/2024 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14020
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VOLTAIRE PETER PIERRE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:19-cr-00052-SDG-1
____________________
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2 Opinion of the Court 22-14020
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Voltaire Pierre appeals his convictions and 97-month total
sentence, stemming from a plea agreement he entered into with
the government. He argues for the first time on appeal that the
government breached the plea agreement by requesting or endors-
ing an upward adjustment for abuse of a position of trust, see
U.S.S.G. § 3B1.3, which was not among the agreed-upon provisions
in the plea agreement. After careful review, we conclude that
Pierre has not met his burden of showing that any breach was suf-
ficiently clear or obvious to warrant relief on plain error review, so
we affirm his convictions and sentence. We vacate and remand for
the limited purpose of correcting a clerical error in the judgment.
I.
From June 2018 to October 2018, while working as a correc-
tional officer at Hays State Prison, Pierre smuggled drugs and con-
traband into the prison and distributed these things to inmates in
exchange for cash. After his arrest, he was charged in a two-count
information with conspiring to possess with intent to distribute
methamphetamine and cocaine, see 21 U.S.C. § 846, and possessing
with intent to distribute methamphetamine on premises where
children are present or reside, see 21 U.S.C. §§ 841(a)(1), 860a. 1
1 Packages containing drugs, including cocaine base and methamphetamine,
were delivered to and kept at Pierre’s residence, where a minor child resided.
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22-14020 Opinion of the Court 3
Pierre pled guilty to both counts under a negotiated plea
agreement with the government. In the agreement, the parties
agreed to certain guideline and sentencing issues, including that the
applicable offense guidelines were U.S.S.G. § 2D1.1(a)(5) and (c),
and that Pierre should receive upward adjustments under §
2D1.1(b)(4) and (14)(B). The government also agreed to recom-
mend offense level reductions for acceptance of responsibility, §
3E1.1, and the safety valve, § 2D1.1(b)(18), and to “recommend
that [Pierre] be sentenced at the low end of the adjusted guideline
range.” No specific offense levels or guideline ranges were set forth
in the agreement.
The parties also agreed “not to request any sentence outside
of the Guidelines range nor any Guidelines adjustment for any rea-
son that is not set forth in this Plea Agreement,” and that the “rec-
ommended sentence set forth in this Plea Agreement is reasonable
under the factors set forth in 18 U.S.C. § 3553(a).” Nonetheless,
they acknowledged that the recommendations and guideline cal-
culations in the plea agreement were “not binding on the Court,”
and that the court’s decision not to follow the agreement “will not
constitute grounds to withdraw [the] guilty plea or to claim a
breach of [the] Plea Agreement.” Finally, the agreement contained
a waiver of Pierre’s appellate rights in most circumstances.
The district court accepted Pierre’s guilty plea at a hearing
in October 2019. During the plea colloquy, Pierre confirmed his
understanding that the district court was not bound by the plea
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4 Opinion of the Court 22-14020
agreement with regard to the calculation of the guideline range or
the choice of sentence.
A probation officer prepared a presentence investigation re-
port (“PSR”) to aid the district court at sentencing. Notably, the
PSR’s guideline calculations included a two-level upward adjust-
ment for abusing a position of trust under § 3B1.3. That recom-
mended enhancement was absent from the plea agreements. Ac-
cording to the PSR, Pierre abused a position of trust as a correc-
tional officer “by smuggling drugs into the prison where he was
entrusted with the care and security of the inmates housed
therein.” Based in part on that adjustment, the PSR calculated a
total offense level of 33. Pierre had no criminal history, so the rec-
ommended guideline range was 135 to 168 months of imprison-
ment.
Neither party objected to the PSR. In accordance with the
plea agreement, the government sought a reduction of five levels
from the total offense level calculated in the PSR—that is, from
level 33 to level 28. In an accompanying sentencing memorandum,
the government summarized the PSR’s guideline calculations, in-
cluding the § 3B1.3 abuse-of-trust adjustment, and it requested a
sentence at the low end of the modified guideline range of 78 to 97
months.
At sentencing, the district court adopted the government’s
five-level-reduction recommendation. It also adopted the PSR’s
factual statements and guideline calculations without objection.
Thus, the court adopted the PSR’s application of a two-level
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22-14020 Opinion of the Court 5
increase for abuse of a position of public trust, ultimately arriving
at a guideline range of 78 to 97 months.
The district court then invited argument on recommenda-
tions for a reasonable sentence. The government argued for a low-
end 78-month sentence, asserting that the “state trusted Mr. Pierre
to do the right thing and maintain security,” but he instead “chose
to smuggle drugs” to incarcerated gang members because he was
“greedy,” conduct which merited “serious punishment.” Defense
counsel spoke at length about mitigating factors, including Pierre’s
background and family and the financial stressors he faced in
providing for three young children. Pierre allocuted, and the court
heard testimony from Pierre’s pastor.
The district court sentenced Pierre to a total of 97 months in
prison, at the high end of the guideline range. The court discussed
its consideration of the 18 U.S.C. § 3553(a) factors, including the
seriousness of the offense conduct, the need for general deterrence,
which it emphasized, and Pierre’s personal history.
Pierre appeals, arguing for the first time that the govern-
ment breached the plea agreement by endorsing the two-level
abuse-of-trust enhancement, U.S.S.G. § 3B1.3, which was not listed
in the plea agreement. Despite the appeal waiver in Pierre’s plea
agreement, “an appeal waiver does not bar a defendant’s claim that
the government breached the plea agreement.” United States v.
Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016).
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6 Opinion of the Court 22-14020
II.
Ordinarily, we review de novo the question whether the gov-
ernment has breached a plea agreement. United States v. Malone, 51
F.4th 1311, 1318 (11th Cir. 2022). But where “as here, the defend-
ant did not object before the district court that the government
breached a plea agreement, we review on direct appeal for plain
error.” Id. Under plain-error review, we may correct a plain error
that affected the defendant’s substantial rights and the fairness or
integrity of the judicial proceedings. Id. at 1319.
“For an error to be considered plain, the error must be clear
or obvious, rather than subject to reasonable dispute.” United
States v. Sosa, 782 F.3d 630, 637 (11th Cir. 2015) (quotation marks
omitted). It follows that not all breaches of a plea agreement “will
be clear or obvious, such as when the drafting of an agreement
leaves the scope of the government’s commitments open to
doubt.” Id. (quotation marks omitted).
III.
The government “breaches a plea agreement when it fails to
perform the promises on which the plea was based.” United States
v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016). We judge the gov-
ernment’s actions “according to the defendant’s reasonable under-
standing at the time he entered his plea.” Id. (quotation marks
omitted). “We apply an objective standard to decide whether the
government’s actions are inconsistent with the defendant’s under-
standing of the plea agreement, rather than reading the agreement
in a hyper-technical or rigidly literal manner. Id. (cleaned up).
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22-14020 Opinion of the Court 7
In exchange for Pierre’s promise to plead guilty to both
charges in his indictment, the government agreed to certain guide-
line application decisions and promised “not to request any sen-
tence outside of the Guidelines range nor any Guidelines adjust-
ment for any reason that is not set forth in this Plea Agreement.”
This language, in Pierre’s view, “amounted to a promise that the
government would not seek, endorse, or argue for Guideline ad-
justments other than those specifically listed in the plea agree-
ment.” Pierre claims that the government violated this agreement
by “endors[ing],” “recommend[ing,]” or “advocat[ing] for an up-
ward adjustment (under § 3B1.3) that was not in the plea agree-
ment.”
We disagree. The government’s actions were not plainly in-
consistent with its promises in the plea agreement, such that we
can grant relief under plain-error review. See Sosa, 782 F.3d at 638
(“[I]t was not ‘clear under current law’ that the government pa-
tently breached the plea agreements . . . or that any such breach
should have been ‘obvious’ to the district court.”). The PSR in-
cluded the § 3B1.3 abuse-of-trust adjustment without any request
or advocacy from the government. That adjustment was based on
facts to which Pierre admitted in pleading guilty—that is, that he
used his position as a correctional officer to smuggle drugs into the
prison. 2 And it was applied by the district court, who was not
2 The PSR offers no reason to believe that the adjustment was based on other,
allegedly objectionable facts that the government supplied to the probation
office, as Pierre contends.
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8 Opinion of the Court 22-14020
bound by the plea agreement, without any objection or argument
from the parties.
The record does not support Pierre’s contention that the
government requested, sought, endorsed, or argued for the § 3B1.3
adjustment in its sentencing memorandum or at sentencing. True,
the government noted the PSR’s guideline calculations in its mem-
orandum, which it described as “applicable to” Pierre, and it failed
to object or point out, either in the memorandum or at sentencing,
that the § 3B1.3 adjustment was inconsistent with the plea agree-
ment. But Pierre does not assert that the plea agreement obligated
the government to object to a new adjustment. Nor does he claim
that the government breached the agreement by merely “remain-
ing passive” or failing to object. So these instances of the govern-
ment’s having “remain[ed] passive” or it failure to object to the PSR
are not sufficient, without more, to establish a clear breach of the
plea agreement.
Pierre also highlights the government’s argument for a sen-
tence at the low end of the guideline range that the PSR recom-
mended and the district court adopted at sentencing—that is, the
range that included the § 3B1.3 adjustment. He casts the govern-
ment’s argument under the § 3553(a) factors as an adoption or en-
dorsement of the § 3B1.3 adjustment, actions inconsistent with its
promise not to request any guideline adjustment not in the plea
agreement.
But the government, in its arguments for a reasonable sen-
tence, did not advocate a position that would have had any effect
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22-14020 Opinion of the Court 9
on Pierre’s guideline range or that would have “requir[ed] a longer
sentence than it had agreed to recommend.” United States v. Taylor,
77 F.3d 368, 371 (11th Cir. 1996). Rather, the government cited
Pierre’s abuse of trust as a reason for imposing a sentence at the
low end of the adjusted guideline range, consistent with its “Spe-
cific Sentence Recommendation” promise in the plea agreement to
“recommend that [Pierre] be sentenced at the low end of the ad-
justed guideline range.”
While Pierre believes that the government “should have rec-
ommended 63 months, the low end of the Guideline range without
the § 3B1.3 adjustment,” he fails to explain why the plain terms of the
plea agreement demanded that recommendation. Pierre does not
contend that he reasonably understood the Recommendation
promise as requiring a recommendation for a sentence at the low
end of the guideline range contemplated by the plea agreement, as
opposed to the range calculated by the district court at sentencing.
Instead, his argument is that the government violated an unambig-
uous requirement “to recommend no other Guideline adjustments
other than those listed in the agreement.” For the reasons already
explained, though, it is not clear or obvious that the government
acted inconsistently with that promise.
None of the cases on which Pierre relies establishes plain er-
ror in this case. In Boatner, Taylor, and Malone, we held that a
breach occurred where the government took a position, in re-
sponse to a defendant’s PSR objection, that was directly at odds
with a promise in the plea agreement. In United States v. Boatner,
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10 Opinion of the Court 22-14020
the government stipulated that the defendant was responsible for
a certain drug quantity, but it then “attempted to bolster” the PSR’s
higher drug quantity by declaring that its later investigations sup-
ported the PSR. 966 F.2d 1575, 1579 (11th Cir. 1992). Likewise, in
Taylor, the government promised to recommend a sentence of ten
years but then supported the PSR’s position on relevant conduct,
which required a sentence of at least 151 months under the then-
mandatory guidelines. 77 F.3d at 370–71. And in Malone, the gov-
ernment promised to recommend a reduction for acceptance of re-
sponsibility but then took the opposite position at sentencing. 51
F.4th at 1317, 1320–21.
Here, in contrast, Pierre did not object to the PSR, and so
the government was not asked to provide, nor did it offer, any ar-
gument or evidence about the application of the § 3B1.3 adjust-
ment. Had Pierre’s counsel objected to the PSR, this would, in sev-
eral respects, be a different case. But on the current record, we
cannot say that any breach of the plea agreement by the govern-
ment was “clear or obvious, rather than subject to reasonable dis-
pute.” Sosa, 782 F.3d at 637.
For these reasons, we conclude that Pierre has not shown
that any error was sufficiently “plain” to warrant relief on plain-
error review. Accordingly, we do not consider his remaining argu-
ments relating to whether the error affected his substantial rights
or the fairness and integrity of the proceedings. 3
3 As part of his argument on these points, Pierre contends that the district court
made several other sentencing errors, including focusing on general
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22-14020 Opinion of the Court 11
Finally, although we affirm Pierre’s convictions, we vacate
and remand for the limited purpose of allowing the district court
to correct a clerical error in the judgment. See United States v. Mas-
sey, 443 F.3d 814, 822 (11th Cir. 2006) (“We may sua sponte raise the
issue of clerical errors in the judgment and remand with instruc-
tions that the district court correct the errors.”). The judgment lists
the nature of the offense under 21 U.S.C. § 860a as “DISTRIBUTE
IN OR NEAR SCHOOLS/CONTROLLED SUBSTANCE,” but
that description pertains to 21 U.S.C. § 860(a), rather than § 860a,
the statute of conviction. Accordingly, we remand with instruc-
tions to correct the judgment’s erroneous description of the nature
of the offense.
AFFIRMED in part; VACATED and REMANDED in part.
deterrence to the exclusion of other pertinent § 3553(a) factors. Perhaps due
to the appeal waiver in his plea agreement, though, Pierre does not raise these
arguments as independent grounds for vacating the sentence, so we do not
address them as such.