United States v. Oscar Minuti-Barrientos , 212 F. App'x 905 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 28, 2006
No. 06-11111 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00389-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR MINUTI-BARRIENTOS,
a.k.a. David Camacho,
a.k.a. Mauricio Leon,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 28, 2006)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Oscar Minuti-Barrientos (“Minuti”) appeals his conviction and 120-month
sentence for illegal reentry into the United States after deportation, in violation of
8 U.S.C. § 1326 (a) and (b)(2). On appeal, Minuti argues that the government
breached its plea agreement by recommending a sentence at the sentencing
hearing, and, therefore, we should remand this case for resentencing before a
different judge. Minuti contends, without discussion, that the appropriate standard
of review is de novo.
Generally, the issue of whether the government breached a plea agreement is
a question of law reviewed de novo. United States v. Mahique, 150 F.3d 1330,
1332 (11th Cir. 1998). However, if “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. [We] equate [] the
manifest injustice inquiry with review for plain error.” Id. Under plain error
review, there must be (1) an error, (2) that is plain, and (3) that affects substantial
rights. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005). If these
three prongs are met, we may exercise discretion to notice this error if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at
1329. For an error to affect substantial rights, “in most cases it means that the error
must have been prejudicial: It must have affected the outcome of the district court
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proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778,
123 L. Ed. 2d 508 (1993).
When the government breaches a plea agreement, a defendant is to be
afforded two available remedies: (1) specific performance of the government’s
promise; or (2) the withdrawal of his guilty plea. See Santobello v. New York, 404
U.S. 257, 262-63, 92 S. Ct. 495, 499 (1971). The choice of remedy is within the
court’s discretion. See United States v. Williams, 169 Fed. Appx. 548, 554 (11th
Cir. 2006) (unpublished).
Although it is clear from the record that the government breached the plea
agreement during the sentencing hearing, Minuti failed to properly preserve the
issue. Minuti did not request the district court to afford him either available
remedy. Instead, he told the court that he wished to proceed with the sentencing
hearing. Because Minuti opted to proceed with sentencing, and because the district
court made a specific finding that the government’s comments were not going to
affect her decision concerning Minuti’s sentence, we conclude there is no plain
error. See United States v. Forney, 9 F.3d 1492, 1503-04 (11th Cir. 1993)
(refusing to find plain error where the defendant did not preserve objection, and
there was no effect on the defendant’s sentence).
Accordingly, we affirm Minuti’s conviction and sentence.
AFFIRMED.
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