UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40058
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES DAVID BRANAM, also known as Jimmy Branam,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
October 26, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:
James David Branam appeals a fine, imposed as part of his
sentence after a guilty plea. We affirm.
Pursuant to a written plea agreement, Branam pleaded guilty to
a single count of transportation of a stolen vehicle in violation
of 18 U.S.C. § 2312. Four additional counts of sale of a stolen
vehicle were dismissed. Branam was sentenced to 35 months’
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imprisonment, three years’ supervised release, and a $3000 fine.
On appeal, Branam contends that the Government violated the
plea agreement.1 The plea agreement states that:
12. Allocution at Sentencing: The Defendant understands
and agrees that:
(b) the Government shall refrain from recommending
that the sentencing judge sentence the Defendant to a
particular term of imprisonment or fine, but reserves the
right to recommend that the sentence include restitution
and some form of imprisonment. Nothing herein shall be
construed to limit the information which the Government
provides to the probation officer and Court, legal
arguments on the applicability of certain Guideline
provisions, or allocution on the sentence the Court
should impose within the applicable Guidelines.
The Presentence Investigation Report (“PSR”), to which neither
party objected, calculated the Guidelines fine range for Branam’s
conviction from $3000 to $30,000 and recommended the imposition of
a $3000 fine. The PSR noted that Branam signed a personal
financial statement indicating he had no assets or income with
which to pay a fine, but that he was trained in air conditioning
repair and had worked in the heating and air conditioning business
for many years, including owning his own business for about nine
years, indicating some ability to pay. On the other hand, Branam
was incarcerated for an unrelated assault conviction at the time of
sentencing. Branam’s sentence in this case is to be served
consecutively to his state sentence, thus delaying gainful
employment for some time. The Government did not raise the issue
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We consider whether the Government breached the plea agreement
despite an appeal-waiver provision in the plea agreement. United
States v. Price, 95 F.3d 364, 366-68 (5th Cir. 1996).
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of restitution as the equipment had been returned to the proper
owners.
At sentencing, the district court adopted the factual
findings and the Guideline calculations set out in the PSR.
Branam’s counsel stated that he had no objection to the recommended
prison term of 35 months but, on the basis of Branam’s financial
circumstances, urged the district court not to impose a fine.
Branam’s allocution followed, which consisted of a brief statement
that he was trying to change his ways, but included no mention of
the fine.
The district court then afforded the Government the
opportunity to address the court. The Government stated:
I would like to address Mr. Monsivais’ request that the
Defendant not be fined in this case. Your Honor, this
case involved the sale of stolen property, stolen heavy
tractor equipment. And the Government would point out
that the property which Mr. Branam stole, according to
the plea agreement, which he admits stealing, is valued
at over $130,000.
The Government was paying Mr. Branam through its
undercover operation for that money. Of course, that’s
buy money and we’re not allowed to get that back as
restitution, but we paid over $20,000 for that property
and we think that it is fair that Mr. Branam be sentenced
to pay a fine as recommended by the probation office of
$3000 in this case. We think that fine is wholly
appropriate, as we do the sentence recommended by the
probation office. And we would simply encourage the
Judge to order Mr. Branam to pay the fine.
Branam argues on appeal that the Government’s comments at
sentencing went beyond an exercise of the right of allocution and
constituted an improper recommendation as to the fine he should
receive. He contends that the Government breached the plea
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agreement by arguing for a specific fine of $3000. Branam seeks
specific performance of the plea agreement, including an order
vacating his sentence and remanding this case for resentencing
before a different judge. See United States v. Palomo, 998 F.2d
253, 256 (5th Cir. 1993).
The plea agreement included a section setting out specific
procedures for determining whether the plea agreement had been
breached:
13. Procedures for Determining a Breach of the Agreement:
In the event a breach is alleged by either party, the
party claiming the breach shall provide notice to the
other party in writing and afford that party a reasonable
opportunity to explain or cure the breach.
Branam did not object to the prosecutor’s comment, nor did he
comply with that portion of the plea bargain mandating written
notice of an alleged breach and an opportunity to cure the breach.
Because Branam did not object to the prosecutor’s comments, review
is for plain error. United States v. Calverley, 37 F.3d 160, 162-
64 (5th Cir. 1994). Even if we find plain error, we will not
exercise our discretion to correct a forfeited error unless it
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 735-36
(1993). “The Government’s breach of a plea agreement can
constitute plain error.” United States v. Wilder, 15 F.3d 1292,
1301 (5th Cir. 1994).
The Government argues that the statement Branam complains
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about was allocution on the sentence the district court should
impose within the applicable Guidelines. The Government
specifically reserved its right to allocution in the plea agreement
and contends that Branam’s argument that he did not have the
ability to pay a fine called for a response from the Government.
Further, the $3000 figure was the bottom of the Guideline range of
$3000 to $30,000 and the same figure recommended by the probation
office. The argument might therefore be characterized as urging
the district court to fine Branam within the Guideline range or in
compliance with the probation office’s recommendation, to which
Branam had not objected.
Assuming, without deciding, that the Government’s statement
“encouraging” the district court to impose the fine breached the
plea agreement and amounted to plain error, we conclude that it did
not seriously affect the fairness, integrity, or public reputation
of the judicial system. Branam’s failure to comply with the plea
agreement’s wholly reasonable and specific procedures for
determining whether the agreement had been breached convinces us
that Branam is not entitled to an order for specific performance of
the agreement. We therefore decline to correct any plain error
that may exist.
Branam next claims that the district court erred in assessing
a fine because he had demonstrated that he did not have the
financial ability to pay a fine. The Government notes that Branam
failed to object to the fine and argues that it was appropriate.
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As part of the plea agreement, Branam waived “any appeal, including
collateral appeal under 28 U.S.C. § 2255, of any error which may
occur surrounding the substance, procedure or form of the
conviction and sentence in this case” with the exception of
Sentencing Guidelines determinations. A defendant may waive his
statutory right to appeal as part of a valid plea agreement if the
waiver is knowing and voluntary. United States v. Melancon, 972
F.2d 566, 567 (5th Cir. 1992). The record in this case dictates
the conclusion that Branam validly waived his right to appeal.
Therefore, he may not challenge the propriety of the district
court’s decision to impose a $3000 fine as part of his sentence.
Based on the foregoing we affirm Branam’s sentence.
AFFIRMED.
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