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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14072
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20942-RKA-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALIET HUSSEIN,
a.k.a. Aliet Pino Garcia,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 10, 2020)
Before MARTIN, ROSENBAUM, and LAGOA, Circuit Judges.
PER CURIAM:
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Aliet Hussein (“Hussein”) appeals the denial of her motion for specific
performance of her plea agreement. Hussein argues that the government breached
the plea agreement by advocating for a three-level aggravating role enhancement
and opposing her motion for a downward variance. For the following reasons, we
affirm.
I. FACTUAL AND PROCEDURAL HISTORY
From about February 2015 to December 2018, Hussein owned and operated
Sky Pharmacy. Through Sky Pharmacy, Hussein engaged in a scheme in which she
submitted, or caused the submission of, false Medicare Part D claims for
prescriptions that were never filled. On December 6, 2018, the government charged
Hussein with twelve counts of health care fraud in violation of 18 U.S.C. § 1347.
On July 24, 2019, Hussein entered into a plea agreement with the government.
Hussein agreed to plead guilty to Count 1 of the indictment, and the government
agreed to dismiss the remaining counts after sentencing. Paragraph 7 of the plea
agreement stated as follows:
This Office and the defendant agree that, although not binding
on the probation office or the Court, they will jointly recommend that
the Court make the following findings and conclusions as to the
sentence to be imposed:
a. Base Offense Level: the parties agree that the base offense
level applicable to the defendant’s conduct is level six (6) pursuant to
Sentencing Guidelines §2B1.1(a)(2).
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b. Intended Loss: the parties agree that the defendant’s
participation in the offense caused an intended loss to Medicare
exceeding $1.5 million but not exceeding $3.5 million, resulting in a
sixteen (16) level enhancement pursuant to Sentencing Guidelines
§2B1.1(b)(1)(I).
c. Federal Health Care Program: the parties agree that the
defendant’s offense of conviction is a Federal health care offense
involving a Government health care program, and the loss to the
Government health care program exceeds $1 million but does not
exceed $7 million, resulting in a two (2) level enhancement under
Sentencing Guidelines §2B1.1(b)(7).
Then Defendant remains free to advocate for or against any other
sentencing adjustments under the guidelines, and to argue for
sentencing variances under 18 U.S.C. § 3553(a).
(emphasis in original). The government further agreed to recommend, under certain
conditions, a two-level reduction for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1(a), an additional one-level reduction pursuant to U.S.S.G.
§ 3E1.1(b) if the offense level at the time of sentencing was sixteen or greater, and
“that the Defendant receive a sentence at the low-end of the sentencing guidelines,
as those guidelines are calculated by Probation.”
In Paragraph 5 of the plea agreement, the government reserved its rights as
follows:
This Office reserves the right to inform the Court and the
probation office of all facts pertinent to the sentencing process,
including all relevant information concerning the offenses committed,
whether charged or not, as well as concerning the defendant and the
defendant’s background. Subject only to the express terms of any
agreed-upon sentencing recommendations contained in this agreement,
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this Office further reserves the right to make any recommendation as to
the quality and quantity of punishment.
The plea agreement included a warning that:
[A]ny estimate of the probable sentencing range or sentence that the
defendant may receive, whether that estimate comes from the
defendant’s attorney, this Office, or the probation office is a prediction,
not a promise, and is not binding on this Office, the probation office or
the Court. The defendant understands further that any recommendation
that this Office makes to the Court as to sentencing, whether pursuant
to this agreement or otherwise, is not binding on the Court and the Court
may disregard the recommendation in its entirety.
Finally, the plea agreement included an integration clause, stating: “This is the entire
agreement and understanding between this Office and the defendant. There are no
other agreements, promises, representations, or understandings.”
The Presentence Investigation Report (“PSI”) mostly accorded with the plea
agreement. Applying the 2018 Sentencing Guidelines, the PSI set the base offense
level at six. See U.S.S.G. § 2B1.1(a)(2). The PSI also recommended a sixteen-level
enhancement because the loss amount was between $1.5 million and $3.5 million
and a two-level enhancement because the conviction involved a loss of greater than
$1 million to a federal health care program. See
id. § 2B1.1(b)(1)(I), (b)(7)(A). The
PSI further recommended a three-level reduction for acceptance of responsibility.
See
id. § 3E1.1(a)–(b). The PSI departed from the plea agreement, however, in
recommending a three-level enhancement because “the defendant was a manager or
supervisor (but not an organizer or leader) of a criminal activity that was otherwise
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extensive.” See
id. § 3B1.1(b). The PSI calculated a total offense level of twenty-
four. With a criminal history category of I, the recommended guideline range was
fifty-one to sixty-three months of imprisonment. See U.S.S.G. Sentencing Table,
ch. 5, pt. A. Had the PSI not applied the three-level role enhancement, the total
offense level would have been twenty-one and the guideline range would have been
thirty-seven to forty-six months’ imprisonment. See
id. The statutory maximum
sentence was ten years. See 18 U.S.C. § 1347(a).
Hussein filed objections to the PSI, specifically objecting to the three-level
role enhancement. She also moved for a downward variance pursuant to 18 U.S.C.
§ 3553. The government responded that the role enhancement was appropriate and
opposed a downward variance. Hussein then moved for specific performance,
arguing that the government had violated the plea agreement by advocating for the
role enhancement and opposing a downward variance. Hussein argued that, because
Paragraph 7 of the plea agreement specified that the defendant was free to advocate
for or against additional sentencing adjustments, it unambiguously precluded the
government from advocating for sentencing enhancements beyond those agreed to
as part of the plea. She also attached email correspondence between herself and the
government stating that “[i]f the Defendant goes to trial, we will seek enhancements
for role.” Finally, Hussein argued that the plea agreement’s statement that she was
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free to argue for a downward variance created the “‘reasonable understanding’ that
the Government would not oppose her motion for a variance.”
The district court conducted a sentencing hearing on October 4, 2019.
Looking specifically at Paragraph 5 and Paragraph 7, the district court found “that
the most reasonable reading of the plea agreement is that the plea agreement is
unambiguous in allowing either the government or probation, or both, to seek
enhancements, allowing [Hussein] to seek reductions, and, of course, allowing
[Hussein] to oppose those enhancements, if they are advocating for those
enhancements.” The district court, therefore, concluded that the government did not
breach the plea agreement by advocating for a role enhancement and opposing a
downward variance.
Next, the district court addressed the merits of the three-level role
enhancement. The court sustained in part and overruled in part Hussein’s objection,
finding that she was an organizer, leader, manager, or supervisor of criminal activity,
but that the government had not met its burden to prove that the criminal activity
was “otherwise extensive.” The court therefore imposed a two-level enhancement
pursuant to U.S.S.G. § 3B1.1(c), rather than the three-level enhancement
recommended in the PSI. This resulted in an offense level of 23 and a guideline
range of forty-six to fifty-seven months of imprisonment. See U.S.S.G. Sentencing
Table, ch. 5, pt. A. Pursuant to the plea agreement, the government advocated for a
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sentence of forty-six months, the low end of the range. The government also
reiterated its opposition to a downward variance. Hussein argued in favor of a
downward variance, requesting house arrest. She called two witnesses in support of
her argument and testified on her own behalf. The court denied the downward
variance and sentenced Hussein to forty-six months of imprisonment, as well as
restitution of $1,884,867.09, three years of supervised release, and a $100 special
assessment. This appeal ensued.
II. STANDARD OF REVIEW
“We review de novo whether the government breached a plea agreement.”
United States v. Thomas,
487 F.3d 1358, 1360 (11th Cir. 2007).
III. ANALYSIS
“[W]hen a plea rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.” Santobello v. New York,
404 U.S. 257, 262 (1971).
Plea agreements are typically interpreted using contract interpretation tools. United
States v. Jeffries,
908 F.2d 1520, 1523 (11th Cir. 1990). In determining whether the
government breached a plea agreement, we must first ascertain the scope of the
government’s promises. United States v. Copeland,
381 F.3d 1101, 1105 (11th Cir.
2004). “The district court’s factual findings on the scope of the agreement will be
set aside only if they are clearly erroneous.”
Id.
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Hussein contends that the plea agreement prohibited the government from
advocating for a role enhancement or opposing a downward variance. In Paragraph
5 of the plea agreement, the government plainly reserved its rights to “inform the
Court and the probation office of all facts pertinent to the sentencing process” and
to “make any recommendation as to the quality and quantity of punishment.” The
government did just that when it advocated for a role enhancement and opposed a
downward variance. This reservation of rights was “[s]ubject only to the express
terms of any agreed-upon sentencing recommendations contained in th[e]
agreement.” Hussein argues that this language means that the government was not
authorized to make recommendations beyond those expressly agreed to in the plea.
But a plain reading of this language indicates that the government could not
contradict the express terms of the plea. On matters where the plea agreement was
silent, including a role enhancement and downward variance, the government was
free to “make any recommendation as to the quality and quantity of punishment.”
Cf.
Raulerson, 901 F.2d at 1012 (“Raulerson failed to negotiate for or failed to obtain
the government’s silence at his sentencing hearings; thus, we hold that the
government did not breach its agreement regarding standing mute.”).
Hussein argues that Paragraph 5 conflicts with Paragraph 7 and that because
Paragraph 7 is more specific, it should control. See United States v. Pielago,
135
F.3d 703, 710 (11th Cir. 1998) (“When two contract terms conflict, the specific term
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controls over the general one.”). Hussein further argues that because Paragraph 7
gave her, and not the government, the right to advocate for sentencing adjustments
and variances, the government’s right to advocate beyond the terms of the agreement
was limited through omission. We conclude, however, that the two paragraphs are
not in conflict but rather, they complement each other. Paragraph 7 lays out specific
terms of the plea agreement and reserves Hussein’s rights, while Paragraph 5
reserves the government’s rights. Reading both paragraphs together, it is clear that
the government and Hussein were jointly bound to make the recommendations listed
in Paragraph 7, Hussein was “free to advocate for . . . any other sentencing
adjustments,” and the government reserved its rights to “make any recommendation
as to the quality and quantity of punishment,” which Hussein was “free to advocate
. . . against.” Likewise, although Paragraph 7 made clear that Hussein was “free . . .
to argue for sentencing variances under 18 U.S.C. § 3553(a),” the plea agreement
neither made a promise nor contained any language precluding the government from
opposing the request for a sentence variance.
We find this Court’s decisions in United States v. Boatner,
966 F.2d 1575
(11th Cir. 1992), and United States v. Taylor,
77 F.3d 368 (11th Cir. 1996),
instructive regarding the type of inconsistent statements at sentencing that could
constitute a breach of the plea agreement by the government. In Boatner, the
government “provid[ed] information to the court in the presentence investigation
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report which contradicted a factual stipulation with the
defendant.” 966 F.2d at
1576. In Taylor, the government “promise[d] to recommend a ten-year sentence”
but then “[a]dvoca[ted] [for] a position requiring a greater
sentence.” 77 F.3d at 370.
Here, in contrast, there was no contrary statement of fact, nor did the plea
agreement promise that the government would recommend a particular sentence.
Rather, in the plea agreement, the government promised that it would make five
discrete recommendations: (1) a base offense level of six; (2) a sixteen-level loss
amount enhancement; (3) a two-level federal health care offense enhancement; (4) a
three-level acceptance of responsibility reduction, subject to certain conditions; and
(5) a sentence on the low end of the guideline range. The record shows that the
government made each of the five promised recommendations.
IV. CONCLUSION
Because we find that the terms of the plea agreement were unambiguous, and
that the government did not breach those terms, we affirm the district court’s denial
of Hussein’s motion for specific performance.
AFFIRMED.
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