United States v. Martin Eugene Haber , 345 F. App'x 473 ( 2009 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                 FILED
    U.S. COURT OF APPEALS
    No. 09-11728                ELEVENTH CIRCUIT
    SEPTEMBER 10, 2009
    Non-Argument Calendar
    THOMAS K. KAHN
    ________________________
    CLERK
    D. C. Docket No. 06-20063-CR-KMM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MARTIN EUGENE HABER,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (September 10, 2009)
    Before DUBINA, Chief Judge, BIRCH and HULL, Circuit Judges.
    PER CURIAM:
    Appellant Martin Eugene Haber, appearing pro se, appeals his 78-month
    sentence for mail and wire fraud. The challenged sentence was the result of a
    resentencing ordered by this court in Haber’s prior appeal. See United States v.
    Haber, 299 Fed. Appx. 865 (11th Cir. 2008) (“Haber I”).
    Haber first argues that the government breached the plea agreement at the
    resentencing by failing to recommend a three-level reduction for acceptance of
    responsibility and by failing to recommend a sentence at the low end of the
    guideline range. Significantly, Haber does not argue that the district court erred in
    finding that he engaged in misconduct post-agreement, and does not dispute that
    the plea agreement expressly relieves the government of these two
    recommendation requirements where post-agreement misconduct is shown.
    Rather, he argues that the government should have been estopped from introducing
    evidence of his misconduct because the misconduct was actually or constructively
    known to the government before the Rule 11 plea colloquy.
    “Whether the Government breached a plea agreement is a question of law
    that we review de novo.” United States v. De La Garza, 
    516 F.3d 1266
    , 1269 (11th
    Cir. 2008), cert. denied, 
    129 S. Ct. 1668
    (2009). The question of breach “is judged
    according to the defendant’s reasonable understanding at the time he entered his
    plea.” United States v. Boatner, 
    966 F.2d 1575
    , 1578 (11th Cir. 1992). “[T]he
    Government breaches a plea agreement where the Government introduces or
    2
    supports facts at sentencing that contradict the facts stipulated to in the agreement.”
    De La 
    Garza, 516 F.3d at 1270
    .
    Under the express terms of the plea agreement, the government was not
    required to recommend an acceptance of responsibility reduction or a sentence at
    the low end of the guideline range if Haber engaged in illegal activities or other
    misconduct after the date of the plea agreement. The agreement contains no
    requirement that the government disclose to Haber its discovery of any post-
    agreement misconduct by him, or disclose in advance its intention not to make any
    particular recommendation at sentencing as a result of that misconduct, and Haber
    cites no such contractual duty in his brief. Because the plea agreement is silent on
    this issue, we conclude that Haber’s estoppel argument is without foundation.
    Haber next argues that the government breached the plea agreement by
    failing to recommend a sentence within the guideline range at the resentencing.
    Again, whether the government breached a plea agreement is a question of law
    which we typically review de novo. 
    Id. at 1269.
    Although, where, as here, no
    contemporaneous objection was made regarding the alleged breach, we review for
    plain error. 
    Id. “Under plain
    error review, there must be (1) an error, (2) that is
    plain, (3) that affects the defendant's substantial rights, and (4) that seriously
    affects the fairness, integrity, or public reputation of judicial proceedings.” 
    Id. 3 “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
    proceedings.’” 
    Id. (quoting United
    States v. Olano, 
    507 U.S. 725
    , 734, 
    113 S. Ct. 1770
    , 1778 (1993)). The defendant has the burden of persuasion as to prejudice.
    Id.; see also Puckett v. United States, __ U.S. __, 
    129 S. Ct. 1423
    , 1428-29, 1432-
    34 and n.4 (2009) (applying plain error review to forfeited claims about an alleged
    government breach of a plea agreement, and clarifying that question of prejudice
    does not relate to whether defendant would have entered into the plea, but rather,
    whether his sentence was affected).
    The plea agreement contained a number of stipulations, one of which
    obligated the government and Haber to jointly recommend that the court find the
    loss resulting from the offense was more than $400,000 and less than $1,000,000.
    Haber, however, took the position at resentencing that the court should
    independently determine the loss amount. Haber argued that the “amounts listed
    by the Government weren’t the loss amounts” and put on evidence that the amount
    of loss was less than $400,000. (Resentencing Transcript, R. 9-153 at 32-36.)
    When Haber failed to recommend that the court find the loss in accordance with
    the plea agreement, the government was no longer obligated by the plea agreement
    to recommend a guideline-range sentence. See 
    Puckett, 129 S. Ct. at 1432
    n.2
    4
    (government’s obligations under plea agreement may be excused where the
    defendant breaches the agreement).
    Even to the extent the government’s failure to recommend a guideline
    sentence might be deemed a breach of the plea agreement, we conclude that Haber
    has not demonstrated plain error. Puckett establishes that where the government
    has breached a plea agreement, a defendant can only show plain error by
    demonstrating that his sentence was affected by the 
    breach. 129 S. Ct. at 1432-33
    (“The defendant whose plea agreement has been broken by the government will
    not always be able to show prejudice, either because he obtained the benefits
    contemplated by the deal anyway . . . or because he likely would not have obtained
    those benefits in any event . . . .”). Here, Haber received a sentence within the
    guideline range notwithstanding the government’s alleged breach regarding a
    within-guideline recommendation, so there was no prejudice.
    For the aforementioned reasons, we affirm Haber’s sentence.
    AFFIRMED.
    5
    

Document Info

Docket Number: 09-11728

Citation Numbers: 345 F. App'x 473

Judges: Black, Dubina, Hull, Per Curiam

Filed Date: 9/10/2009

Precedential Status: Non-Precedential

Modified Date: 8/2/2023